Consent judgment in TCA case broader than necessary to remedy violation

by Gary Taylor

St. Charles Tower, Inc. v. Kurtz
(Federal 8th Circuit Court of Appeals, June 28, 2011)

St. Charles Tower filed an application for a conditional use permit to build a cell tower in Franklin County, Missouri.  The planning commission denied the application and the applicant appealed the decision to the Board of Adjustment.  The ZBA denied the appeal, providing only the following sentence to justify its decision: “The proposed location of the tower would primarily serve areas outside of Franklin County, not providing a adequate amount of benefit to Franklin County residents.”  The applicant then filed suit against the ZBA and Franklin County claiming that the decision violated the Federal Telecommunications Act (TCA).  Prior to trial the parties agreed to a consent judgment that required the issuance of the conditional use permit, as well as any other permits required for the applicant to begin construction.  After the district court approved the consent judgment, the trustee of the homeowners association that opposed the construction of the tower (Kurtz) sought to intervene in the litigation in order to challenge the consent judgment on the grounds that it violated state law.  The district court granted the motion to intervene but denied the the motion to amend or alter the consent judgment.  Kurtz appealed to the Eighth Circuit.

The Eighth Circuit reversed the district court.  The Eighth Circuit found that the consent judgment remedy – compelling the issuance of a conditional use permit – violated state law because state law specifies the sole method for issuing a conditional use permit is through hearing procedures and a four-fifths vote of the ZBA.  St. Charles Tower and the county argued that the consent judgment was permissible because its provisions were the minimum necessary to correct a violation of federal law (the TCA).  The Eighth Circuit disagreed, noting that the inclusion of the provisions that compelled the issuance of other permits was not  “narrowly tailored so as to infringe state sovereignty as minimally as possible.”

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