Planning Board denial not a “final action” under Federal Telecommunications Act when review by Board of Appeals required by ordinance

by Hannah Dankbar and Gary Taylor

Global Tower Assets, LLC; Northeast Wireless Networks, LLC v. Town of Rome
Federal 1st Circuit Court of Appeals, January 8, 2016

Global Tower Assets and Northeast Wireless Networks obtained a leasehold interest in Rome, Maine. According to Rome’s Ordinance applicants must get permission from Rome Planning Board to build a wireless communication tower.

The Ordinance includes a section that reads, “[a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals.”

The companies first asked for permission from the Planning Board to build the tower on April 8, 2013. The Board discussed the proposal on May 20, 2013 and held other meetings over the next few months. On February 10, 2014, the Planning Board voted to deny the application because the application was not complete. On March 10, 2014 the Planning Board published their decision. The decision was sent to the Board of Appeals for Review. The next day, the companies filed suit in the United States District Court for the District of Maine.

Part of their suit included complaints under the Telecommunications Act (TCA) of 1996. The TCA provides relief to those who are denied permission to build telecommunication facilities at the state or local level trough “final action”. However, the TCA does not define “final action”.  In this case, the question is whether the administrative process ended. The companies filed their TCA challenge to the Town of Rome Planning Board’s decision before the decision was reviewed by the local board of appeals. In Maine there is a general requirement that land use and zoning appeals are first heard by a zoning board of appeals before they can be litigated in state court.  Thus under Maine law “Rome necessarily made review by the board of appeals a prerequisite to judicial review.” There was an opportunity for the Planning Board’s decision to be overturned through an administrative (rather than judicial) process, meaning that the decision of the Planning Board was not a “final action” within the meaning of the TCA. The legislative history of the TCA does not reject a two-step administrative process at the local level to determine “final actions.”  Because the administrative process, as defined by Rome’s Ordinance was not complete the District Court was correct to dismiss the complaints.

Links to law presentations from 2015 APA-Iowa Annual Conference

The powerpoint presentations from the 2015 APA-Iowa Annual Conference held in Sioux City on October 14-16 are now available here.

Thursday afternoon session on Signs and Cell Towers, by Peter McNally, Dustin Miller and Gary Taylor

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

Failure to make minutes available “essentially contemporaneously” with the decision under Federal Telecommunications Act was harmless error

by Gary Taylor

Smith Communications, LLC v. Washington County, Arkansas
Federal 8th Circuit Court of Appeals, May 12, 2015

In February 2013 Smith Communications applied for a conditional use permit (CUP) to build a 300-foot-tall cell tower in Washington County, Arkansas.  The property was zoned “Agriculture/Single-Family Residential,” and homes are located within 1/4-mile of the site.  The criteria for granting a CUP are those general considerations typical for most zoning codes (compatibility with surrounding area, no endangerment to public health or safety, not injurious to use and enjoyment of nearby properties, etc.). The Washington County Planning Board approved the CUP, but nearby residents appealed the decision to the Washington County Quorum Court [Note: apparently a body akin to a Zoning Board of Adjustment].  The Quorum Court met twice – June 4 and June 24, 2013 – and held extensive hearings. The residents in attendance focused on safety, nearby property values, the tower’s “fit” with the surrounding area, and the “destruction” of scenic views.  At the end of the June 24 meeting the Quorum Court voted 10-3 to reject Smith’s application.  Four days later the county sent Smith an email containing a letter of denial that stated, among other things, that “the minutes and video of the first and last Quorum Court meetings will act as the County’s written reason for denial.”  The minutes from the June 4 meeting were already available at that time; however, minutes from the June 24 meeting were not available until July 22.  Smith appealed to district court citing a violation of the Federal Telecommunications Act (FTA).  The district court determined that the county could not rely on the meeting minutes to constitute a legally adequate explanation for the denial under the FTA, ans so remanded the matter back to the Quorum Court with an order to explain the reasons for the denial in a writing separate from the minutes and written record.  The county did so on April 18, 2014, largely citing the reasons advanced by the neighbors.  The district court was satisfied with this, and so it was Smith appealing this ruling that brought the case before the 8th Circuit Court of Appeals.

Smith argued that under the district court’s authority to review FTA matters “on an expedited basis” the court should have simply “ordered the issuance of a permit” because the county had failed to provide an adequate written explanation for its denial.  The Court of Appeals rejected this reasoning.  It noted that in T-Mobile South the US Supreme Court recently held that “a locality may rely on detailed meeting minutes so long as the locality’s reasons are stated clearly enough to enable judicial review.”  Thus, contrary to the district court’s first ruling, the county did not violate the FTA by relying on the meeting minutes.

What about the fact that the minutes from the June 24 meeting were not available until July 22?  In T-Mobile South the Supreme Court also said that a local governments must provide written reasons for its denial “essentially contemporaneously” with the denial.  The Court of Appeals concluded that the minutes of the June 4 meeting, which were available at the time of the denial, captured essentially the same concerns as were articulated on June 24.  Representatives of Smith attended both meetings.  “In light of these facts and the record before use, Smith received adequate notice of the reasons for the Quorum Court’s denial….[The county’s] failure to promptly make the latter meeting minutes available was, at most, a harmless error,” and did not require the district court to order immediate issuance of a CUP.

The Court of Appeals also went on to determine, after thoroughly reviewing all of Smith’s contentions and the record as a whole, that substantial evidence supported the Quorum Court’s denial of the CUP application.  “Aesthetic concerns can be a valid basis on which to deny [a] permit, so long as the aesthetic judgment is grounded in the specifics of the case and not based on generalized aesthetic concerns…that are applicable to any tower, regardless of location.”

The district court decision favoring the county was affirmed.

 

More on cell towers…”in writing” requirement

In keeping with the cell tower theme from yesterday, the following is an excerpt of my article that appeared in this month’s Iowa County regarding the T-Mobile case.

U.S. Supreme Court decision impacts local administration of cell tower applications.

The Federal Telecommunications Act of 1996 (FTA) injected federal law into local control over the siting of wireless facilities (cell towers). The FTA requires, among other things, that a local board or commission’s denial of an application for a wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” This has come to be known as the “in writing” requirement. Since 1996 federal courts have come to different conclusions about what local boards and commissions must do to satisfy this requirement. Last year the U.S. Supreme Court agreed to take the case of T-Mobile South v. City of Roswell to clear up some of the confusion caused by the disagreements among the lower courts.

T-Mobile South applied to build a 108-foot cell tower in a residential neighborhood in Roswell, Georgia. The tower was to look like a pine tree, branches and all, though it would have stood at least twenty feet taller than surrounding trees. The city’s zoning department recommended approval subject to several conditions. At the city council’s public hearing four council members expressed concerns about the tower, and a motion to deny the application passed unanimously. Two days later, the city sent T-Mobile a denial letter. The letter did not provide reasons, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not formally approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later. T-Mobile filed suit, won in District Court, lost in the Eleventh Circuit Court of Appeals, and appealed to the U.S. Supreme Court. The Court issued its decision on January 14.

The following three points important to local governments result from the Supreme Court decision:

  1.  Local government must provide written reasons for denying a cell tower application. The Court determined that “supported by substantial evidence contained in a written record” imposes upon local governments a requirement to provide written reasons when they deny cell tower applications. The Court explained that it would be extremely difficult for courts to review local decisions on cell towers if localities did not state their reasoning in writing. The Court went on to stress, however, that “these rea­sons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.” Although not stated by the Court, it remains important that local boards and commissions base their decisions on the criteria found in the local ordinance when approving/denying cell tower applications.
  2. The denial and written reasons do not need to be in the same document; i.e., separate detailed minutes satisfy this requirement. Local governments are not required to provide their reasons in the denial notice itself, but may state those reasons in some other written record. The practice in many communities is to let detailed minutes (or even a verbatim transcript) of hearings stand as the “written record” of board and commission decisions. The Court held that this practice satisfies the “in writing” requirement of the FTA. At the same time the Court gave advice to local governments that “if the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation – and adding expense to the taxpayer, the companies, and the legal system – while the parties argue about exactly what the sometimes voluminous record means.”
  3.  If the decision and written reasons are in separate documents they must be issued “essentially contemporaneously.” The Court further determined, however, that because the FTA requires a wireless company challenging a denial to commence its lawsuit within 30 days of the denial, the denial and written reasons, if separate documents, must be issued “essentially contemporaneously.” “Because an entity may not be able to make a considered decision whether to seek judicial re­view without knowing the reasons for the denial …the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.” The Court suggested that “if a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial … and instead release it along with its reasons once those reasons are ready to be provided.”

The Court concluded that because Roswell did not issue its denial and written reasoning (in the form of minutes) “essentially contemporaneously” it had violated the “in writing” requirement of the FTA.  The case was a loss for Roswell, but for local governments generally it affirms the practice of many local governments that do not issue formal denials containing the rationale for the decision, but instead rely on the minutes for the rationale.

 

US Supreme Court issues opinion on “in writing” requirement of Federal Telecommunications Act

Today the US Supreme Court issued its ruling concerning the “in writing” requirement of the Federal Telecommunications Act.  My previous post explaining the case, and the disagreement among the federal circuit courts, is here.

by Gary Taylor

T-Mobile South, LLC v. City of Roswell, Georgia
United States Supreme Court, January 14, 2015

T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia. The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements of the relevant portions of the city code, and recommended approval of the application subject to several conditions. The city council then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.

T-Mobile filed suit, alleging that the council’s decision violated the “in writing” requirement of the Federal Telecommunications Act (FTA) that says that a denial of an application for a wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” The District Court agreed with T-Mobile.  On appeal the Eleventh Circuit reversed.  Noting that T-Mobile had received a denial letter and possessed a transcript of the hearing that it arranged to have recorded, the Eleventh Circuit found that this was sufficient to satisfy the “in writing” requirement.

The US Supreme Court first determined that “supported by substantial evidence contained in a written record” imposes upon local governments a requirement to provide reasons when they deny applications to build cell towers.  It would be extremely difficult for a reviewing court to carry out its review of a local decision if localities were not obligated to state their reasons in writing. The Court went on to stress, however, “that these rea­sons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.” In this regard, it is clear that Congress meant to use the phrase “substantial evidence” simply as an administrative “term of art” that describes how an administrative record is to be judged by a reviewing court.”  It is not meant to create a substantive standard that must be proved before denying applications.

Local governments are not required to provide their reasons in the denial notice itself, but may state those reasons with sufficient clarity in some other written record such as in detailed minutes. At the same time, the Court agreed with the Solicitor General’s brief that “the local government may be better served by including a separate statement containing its reasons….If the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation – and adding expense to the taxpayer, the companies, and the legal system – while the parties argue about exactly what the sometimes voluminous record means.”

The Court further determined, however, that because the FTA requires the recipient of a denial to seek judicial review within 30 days from the date of the denial, the denial and written reasons, if contained in separate documents, must be issued “essentially contemporaneously.”

Because an entity may not be able to make a considered decision whether to seek judicial re­view without knowing the reasons for the denial of its application, and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.
The Court observed that this rule ought not to unduly burden localities given the range of ways in which localities can provide their reasons.  Noting that the FCC “shot clock” declaratory ruling [discussed in the blog here] allows localities 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications, the Court suggested that “if a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.”

The Court concluded that it was acceptable for Roswell to provide its denial and written reasoning (in the form of detailed minutes) in separate documents, but did not issue these documents “essentially contemporaneously.”   As such, the city did not comply with the statutory obligations of the FTA.  The Court remanded the case to the Eleventh Circuit to address the question of the appropriate remedies.

T-Mobile South case argued before US Supreme Court

Monday the US Supreme Court heard arguments in the case of T-Mobile South v. City of Roswell, a case interpreting the “in writing” requirement of the Federal Telecommunications Act.

T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia (the respondent). The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements in relevant city ordinances, and recommended approval of the application subject to several conditions. The city then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.

47 U.S.C. § 332(c)(7)(B)(iii) – a provision of the Federal Telecommunications Act – requires that state or local government decisions denying wireless infrastructure requests “shall be in writing and supported by substantial evidence contained in a written record.” The question in front of the Supreme Court is  “Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s ‘in writing’ requirement.”

A recap of Monday’s arguments by Miriam Seifter with SCOTUSblog can be found here.  From this summary the reader is left with the impression that the city of Roswell was not particularly interested in standing up for the interests of other local governments in how it focused its argument.

US Supreme Court validates FCC’s shot clock ruling for local decisions on cell tower permits

by Gary Taylor

City of Arlington, Texas v. Federal Communications Commission
(U.S. Supreme Court, May 20, 2013)

This case was previously discussed in this blog here.  On Monday, the U.S. Supreme Court issued its opinion, which effectively validates the FCC’s shot clock declaratory ruling.  A summary of the Court’s opinion:

The Federal Telecommunications Act (FTA) requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” Relying on its broad authority to implement the FTA, the Federal Communications Commission (FCC) issued a Declaratory Ruling (the shot clock) concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, argued that the Commission lacked authority to interpret the language “within a reasonable period of time” because doing so amounted to determining the jurisdictional limits of its own authority – a task exclusively within the province of Congeress. The Fifth Circuit Court of Appeals applied precedent from the case of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to that question. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that the FTA’s broad grant of regulatory authority empowered it to adopt the Declaratory Ruling.

In a 6-3 decision, the U.S. Supreme Court affirmed the Fifth Circuit.  Writing for the majority, Justice Scalia found no distinction between an agency’s “jurisdictional” and “nonjurisdictional” interpretations. When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. The “jurisdictional-nonjurisdictional” line is meaningful in the judicial context because Congress has the power to tell the courts what classes of cases they may decide—that is, to define their jurisdiction—but not to prescribe how they decide those cases. For agencies charged with administering congressional statutes, however, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is beyond their authority and can be struck down by a court.  Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. If, however the statute is silent or ambiguous, the court must defer to the administering agency’s construction of the statute so long as it is permissible. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron framework.

The Court rejected Arlington’s contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern. The case does not implicate any notion of federalism: The statute explicitly supplants state authority, so the question is simply whether a federal agency or federal courts will draw the lines to which the States must hew.

A general conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. In this case, the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency’s interpretation of “reasonable period of time” at issue was promulgated in the exercise of that authority.

SCOTUSblog recaps this week’s Supreme Court arguments

SCOTUSblog provided good previews of this week’s oral arguments, discussed in this blog on Tuesday, and a post-argument recap of the St. Johns Water Management takings case.

Koontz v. St. Johns Water Management preview
Koontz v. St. Johns Water Management recap of arguments

City of Arlington v. FCC preview

This week at the U.S. Supreme Court

This is an important week for land use at the U.S. Supreme Court.  On Wednesday the Court will hear arguments in the case of City of Arlington, TX v. Federal Communications Commission, a Federal Telecommunications Act case that was discussed previously in this blog. For the Oyez Project summary of the case go here.

Another case with potentially much broader implications is being argued today.  That case is Koontz v. St. Johns River Water Management Authority.  The Oyez Project summary is here.  An article from the Orlando Sentinel can be found here.  As a University of Florida law professor aptly stated in the Orlando Sentinel article, the case “doesn’t really reduce itself very well for a newspaper article.”  The essential facts:  The landowner sought permits to prepare his land for development by filling in wetlands. He was told by the St. Johns River Water Management District that he could build on about 3 acres of the parcel if he left the rest of the property alone and paid around $10,000 to restore some wetlands in a state-owned wildlife preserve nearby.  He rejected the second part of that offer and sued St. Johns when it denied his requests for a development permit, arguing that the it had stripped his land of much of its value as a result of the denial. He won in state court and won again when the district took the case to an appeals court. Then, last year, the Florida Supreme Court sided with the water district. (For the lawyers, and non-lawyer land use law fanatics among you, the Florida Supreme Court case can be accessed here).

The U.S. Supreme Court certified the following legal questions:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan u. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and
2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

Potentially at stake is the practice of requesting developers to pay for off-site improvements as a condition of development approval.  Also raised is the question of whether decisions made during the pre-permit negotiation phase can give rise to takings claims.

Supreme Court to address FCC “shot clock” for local governments on cell tower applications (sort of)

Last month the US Supreme Court agreed to hear two cases concerning the FCC’s “shot clock” (previous blogposts on the shot clock are found here) which set time limits on local governments for deciding on zoning requests for cell towers: 90 days for collocations (placing antennas on existing towers) and 150 for all other applications.  Actually the cases don’t directly address the shot clock question.  As you know, law is complicated!

The cases are similar so only one will be explained here.  In Arlington v. FCC the city of Arlington, Texas filed suit claiming that the FCC could not set the shot clock time limits because the FCC cannot determine its own power under the Federal Communications Act. When Congress passed the Act, it granted a certain amount of power to the FCC to enforce and define the rules under the Act, but the city of Arlington argued that setting these specific time limits went too far, because it ran contrary to the provision in the Telecommunications Act that leaves the zoning permitting process in the hands of the local government.

Here is the complicated part.  The case went before the Federal Fifth Circuit Court of Appeals.  The FCC argued that under the long-standing Chevron doctrine (arising from the case of Chevron U.S.A. v. Natural Resources Defense Council) courts must always defer to an agency’s interpretation of a law so long as the interpretation is reasonable and “permissible.” The city of Arlington countered that the Supreme Court has never determined whether the Chevron doctrine applies to situations where the agency is venturing to define the reach of its own jurisdiction under a particular law. The Fifth Circuit sided with the FCC and deferred to the agency’s interpretation that the FCC had the authority to set time limits on local governments (having the effect of affirming the declaratory ruling creating the shot clock). Arlington appealed to the Supreme Court, which agreed to hear the case exclusively to answer whether the Chevron doctrine applies in this situation. In other words, the Supreme Court is not deciding on the legality of the shot clock itself. It is deciding whether a federal court must defer to the FCC’s interpretation that the FCC has the authority to institute the shot clock.  If the Court determines that courts must give deference to the agency’s interpretation of the Telecommunications Act on this issue it will, in effect, preclude this and future challenges.

Oral arguments are scheduled for January 16.

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