Bell Wireless, LLC, a wireless service provider, wanted to close a gap in cell phone signal coverage and applied for the necessary conditional use permit (CUP) to construct a wireless communication facility on property owned by the Helches and zoned “Agricultural.” The zoning allowed for a cell phone tower use in certain circumstances. The County employed two consultants to assist the zoning board in making decisions related to such towers, and they identified 18 requirements that Bell needed to address for its application to comply with the ordinance. As a result, Bell made substantive changes to the plan, such as reducing the height of the tower from 250 to 190 feet, and tried to show that it could not “co-locate” the transmitters (use already existing towers to provide the coverage). In a first for such applications, the consultants recommended approval of the CUP. The landowners in the area, however, opposed the grant based on aesthetics, the impact on property values, and information in a report prepared by their own consultants.
The Board denied the application and Bell’s request for a reconsideration. Bell and the Helchers then sued the Board and its members for violating various provisions of the Telecommunications Act of 1996, 47 U.S.C. § 332(c) – more specifically, that the decision was not based on substantial evidence contained in a written record; that the Board minutes (17 pages) of the meeting did not constitute a sufficient written decision as required; and that the decision had the effect of denying the provision of wireless communication services. The Act required that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). The district court granted the defendants’ motion for summary judgment, finding that the minutes were an accurate recording of what went on during the meeting and that the minutes were adequate to meet the Act’s requirement that the decision be “in writing.” The minutes supplied the reasons underlying the Board’s decision by noting the sections of the ordinance which the applicants failed to satisfy, and allowed for meaningful judicial review of the decision.
In a case of first impression in the Circuit on what is necessary for an “adequate” writing under the Telecommunications Act, the Seventh Circuit affirmed. “We join the First, Sixth and Ninth Circuits, the majority of the courts that have reached this issue. The ‘in writing’ requirement is met so long as the written decision contains a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.… Keeping in mind that local zoning boards typically are not populated with lawyers much less judges, we cannot expect something akin to a judicial opinion. Therefore, a decision ‘in writing’ is adequate if it provides an explanation that allows us, in combination with the written record, to determine if the decision is supported by substantial evidence.” Here, the minutes clearly delineated the issues that arose with the application, the evidence that was presented by the applicants and by the residents to the Board, and the concerns of the applicants, the residents, and the Board members. The minutes cited the specific provisions of the ordinance that the majority of the voting members found were not met by the application; thus, they provided an explanation that allowed the court, in combination with the written record, to determine if the decision was supported by substantial evidence. Secondly, the decision was supported by substantial evidence: the plaintiffs had failed to adequately investigate other kinds of zoned land; a 190-foot industrial-looking tower “would not be harmonious with an agricultural setting,” high above the treeline; and there was some evidence that the tower would have a detrimental effect on land values.
Helcher v. Dearborn County, 2010 WL 431697 (C.A. 7 (Ind. 2/9/2010)
The opinion can be accessed at: http://caselaw.lp.findlaw.com/data2/circs/7th/073949p.pdf
This abstract first appeared in the February IMLA E-News. For information about the International Municipal Lawyers Association, visit www.imla.org
On the question of how a cell tower influences land values, I note that these decisions never consider the effect of lack of effective cell service.
The property next to mine has been on the market for several years. Obviously a difficult time, but two contracts have collapsed when the lack of adequate cell and data service was discovered by the buyers.
By: Bill on March 6, 2010
at 11:08 am