Posted by: Patricia Salkin | December 21, 2013

11th Circuit Court of Appeals Holds that “In Writing” Requirement of TCA was Satisfied

In light of the Court’s recent decision in T-Mobile South v. City of Milton, Georgia, 728 F.3d 1274 (11th Cir. 9/5/13), the Circuit court entertained a nearly identical challenge by T-Mobile to the City of Roswell’s alleged failure to adhere to the Telecommunication Act of 1996’s “in writing” requirement, TCA 332(c)(7)(B)(iii).

In this case, the City had denied a February 2010 application by T-Mobile to construct a 108-foot “monopine” cell tower on vacant property in a residential neighborhood. The proposed tower was intended to look like a pine tree, but would have been 25 feet taller than the surrounding pine trees. The proposal met with significant neighborhood opposition, and the City planning department recommended to the City Council that a number of conditions should be imposed on approval, including relocation of the tower on the property, installation of fencing, and planting of 33 evergreen trees to screen the base of the tower. Following a contentious public hearing on the application, the City Council denied the application on the grounds that the tower would be “aesthetically incompatible with the natural setting and surrounding structure.” In a subsequent letter informing T-Mobile of the denial, the City only briefly stated that the application had been denied and informed the company that minutes of the meeting could be obtained from the City Clerk. T-Mobile filed this challenge to the denial, arguing among other things that it violated the TCA’s “in writing” requirement.

At trial, the lower court held that the City had failed to provide a decision “in writing and supported by substantial evidence on the record” because it had given T-Mobile only a brief decision letter and told it to review the transcript of the public hearing and meetings to find guidance on the reasons for the denial. The City here appeals.

Given its prior holding in T-Mobile South v. City of Milton, the Eleventh Circuit held that it would consider the “in writing” requirement satisfied if all of the written records provided by the City, taken as a whole, gave a sufficient explanation for the decision. As in City of Milton, the Court held that T-Mobile was given access to sufficient written records which, taken all together, collectively satisfied the TCA’s “in writing” requirement. For those reasons, the Eleventh Circuit reversed the trial court, finding in favor of the City on appeal.

T-Mobile South LLC v. City of Roswell, Georgia, 2013 WL 5434710 (11th Cir. 10/1/13)

The opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/201212250.pdf


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