Posted by: Patricia Salkin | September 28, 2014

Eighth Circuit Court of Appeals Upholds Denial of Application For Conditional Use Permit To Construct Telecommunications Tower

NE Colorado Cellular, doing business as Viaero Wireless (“Viaero”), sought to construct a telecommunications tower in the City of North Platte, Nebraska (“the City”). The North Platte City Council (“City Council”) voted to deny Viaero’s application for a permit to build the tower, finding that the tower would be inharmonious with the neighborhood in which Viaero proposed to build. Viaero filed suit against the City for violation of the Telecommunications Act of 1996 (TCA), alleging that the City Council decision was neither “in writing” nor “supported by substantial evidence.” The district court upheld the City’s decision.

The court looked at the Fourth and Eleventh Circuits in analyzing the “in writing” requirement, and found that nowhere does the statutory text require that the denial and the “written record” be separate writings. Section 332 requires only that the denial and the record both be written, and does not require that the written denial state the reasons for the denial. Even though Congress may require an agency or board to state its findings, it did not do so here. Thus, the in writing requirement was met when the City Council passed and memorialized a formal resolution. Substantial evidence was found to exist because the City Council had before it the testimony of a dozen residents that the proposed tower would be an “eyesore,” would be inappropriate for the neighborhood, and would not be harmonious with the neighborhood. In the context of a zoning decision, this is enough for a “reasonable mind” to accept as “adequate to support a conclusion” that the proposed tower would be out of place in the neighborhood.

Because the City Council’s denial of a CUP to construct the proposed telecom tower was both “in writing” and “supported by substantial evidence”, the court held that the district court did not err in granting summary judgment to the City.

NE Colorado Cellular, Inc v City of North Platte, 2014 WL 4116809 (8th Cir. 8/22/2014)

The opinion can be accessed at: http://webcache.googleusercontent.com/search?q=cache:http://www.courthousenews.com/home/OpenAppellateOpinion.aspx%3FOpinionStatusID%3D116752


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