Posted by: Patricia Salkin | November 26, 2015

Fed. Dist. Court in OH Finds no Discovery was Permissible to Support Board’s Defense that Substantial Evidence Supported Its Decision to Deny a Zoning Permit to Construct a Telecommunications Tower

Plaintiff, SBA Towers VI, LLC maintained that Defendant, City of Coshocton, Board of Zoning Appeals violated two provisions of the Telecommunications Act, (“TCA”) 47 U.S.C. § 332(c)(7)(B)(iii), related to the claim that the Board failed to support the decision to deny SBA’s application for a permit to construct a cellular tower in writing, supported by substantial evidence, and § 3332(c)(7)(B)(i)(II), for purportedly prohibiting the provision of personal wireless services. The parties disagreed as to the proper scope of discovery: SBA contended that no discovery is warranted as a matter of law; the Board countered that the administrative record in this case was limited such that it must be permitted to engage in discovery because it could not adequately defend its position.

The Board argued that the administrative record in this case consisted only of the Board’s denial letter, its May 5, 2015 Meeting Minutes, and two letters from residents opposing SBA’s application for a zoning permit. The Board indicated that the meeting was not transcribed, recorded or videotaped but that the Minutes would reveal that the Board members had a “lengthy discussion” regarding SBA’s zoning permit and that the Board “voted on the appeal.” The court found, however, that a defendant was not entitled to discovery in order to create the record it seeks to defend after it has been sued under § 332(c)(7)(B)(iii). Thus, the Court was limited to the administrative record as it was before the zoning board. Accordingly, the court found that no discovery was permissible to support the Board’s defense that substantial evidence supported its decision to deny SBA a zoning permit to construct a telecommunications tower.

SBA Towers VI, LLC v City of Coshocton Board of Zoning Appeals, 2015 WL 6935032 (SD OH 11/10/2015)

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