Posted by: Patricia Salkin | June 17, 2015

8th Circuit Court of Appeals Finds Denial of Wireless Provider’s Application for CUP was Supported by Substantial Evidence

Smith Communications, LLC installs and maintains wireless communications facilities, commonly referred to as “cellular towers” or “personal wireless facilities.” In February 2013, Smith applied for a conditional use permit to build a 300–foot–tall cellular tower in Washington County. The Planning Board approved Smith’s CUP application in early March 2013, and local residents appealed the Planning Board’s decision to the Quorum Court. The residents’ arguments focused on “safety,” “property values,” the tower’s “fit” with the surrounding area, the tower’s proximity to their homes, and concerns of residents who had purchased their homes specifically because of the surrounding scenery and views, which the proposed tower would allegedly “destroy.” At the end of the meeting, on June 24, 2013, members of the Quorum Court voted 10 to 3 to reject Smith’s CUP application. The members who voted against the application believed it failed to meet the requirements of Zoning Code § 11–200(a). The district court upheld Washington County’s denial of the application.

The Act provides that district courts “shall hear and decide” actions challenging a local government’s denial of permission to construct a cellular tower “on an expedited basis.” Smith argued that the district court failed to provide expedited review because the court should have “ordered the issuance of a permit” upon concluding that Washington County had failed to provide an adequate written explanation for its denial. However, the court noted that a locality may rely on detailed meeting minutes to provide its written reasons for denial, so long as the locality’s reasons are stated clearly enough to enable judicial review. Here, the June 4, 2013 meeting minutes alone contained thirty pages of detailed notes from the participants’ presentations and discussions about the tower. Accordingly, the court found Washington County did not violate the Act by relying on these meeting minutes to provide the written reasons for its denial, and Smith received adequate notice of the reasons for the Quorum Court’s denial.

Next, Smith argued that Washington County violated the Act by denying the CUP application without substantial evidence supporting its decision. However, the court found that the Quorum Court analyzed the 300–foot tower’s placement and proximity to nearby residences and reviewed evidence, including pictures and simulations, of the specific areas in question. Thus, the court held that the Quorum Court had substantial evidence on the record as a whole that the tower’s scale, its proximity to residences, and the surrounding environment made approval inappropriate in view of the considerations outlined in Zoning Code § 11–200(a). The trial court’s decision was therefore affirmed.

Smith Communications, LLC v Washington County, Arkansas, 2015 WL 2193027 (8th Cir. 5/12/2015)

The opinion can be accessed at:

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