Agenda - Planning Commission - 01/07/2010

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November 25, 2009 I Volume 3 I No. 22 Zoning Bulletin Telecommunications Act-Board votes to deny requested variance for proposed cell tower Applicant alleges Board violated Telecommunications Act by failing to issue its written decision within thirty days of that vote Citation: USCOC of Greater Missouri v. City of Ferguson, Mo., 2009 WL 3233411 (8th Cir. 2009) The Eighth U.S. Circuit has jurisdiction over Arkansas, Iowa, Minne- sota, Missouri, Nebraska, North Dakota, and South Dakota. Eighth U.S. CIRCUIT/MISSOURI (10/09/09)~USCOC of Greater Missouri ("USCOC") was a subsidiary of United States Cellular Cor- poration. As a licensed wireless telecommunications service provider, it located and developed sites for cell phone towers. USCOC sought to construct. a wireless communications tower on a lot in the city. Pursuant to the city's zoning code, USCOC first need- ed to obtain a special use permit ("SUP") and setback variances. On February 4, 2008, the city's Board of Adjustment (the "Board") voted. to deny USCOC's variance application. In early March, the . Board sent USCOC a written decision, denying the application. Subsequently, USCOC commenced a legal action in district court. Among other things, it argued that the. Board violated the federal Telecommunications Act ("TCA"), 47 US.C.A. ~ 332(c)(7), by fail- ing to issue its written decision within thirty days of voting to deny its variance application. The TCA, ~ 332(c)(7)(B)(iii), requires lo- cal government decisions denying a request to. construct a wireless communications facility be "in writing and supported by substantial evidence in a written record" (the "in writing requirement"). It also gives applicants 30 days (the "statute of limitations") to bring suit under the TCA after a local government's "final action" on an appli- cation (see ~ 332(c)(7)(B)(v)). USCOC contended that "final action" for purposes of the statute of limitations was the city's vote to deny USCOC's variance application. Reading the two TCA requirements together, USCOC contended that the TCA's "in writing" requirement required the Board to issue a written decision within the limitations period (Le., within 30 days of the Board's vote). . The district court rejected USCOC's argument. It concluded that the Board's written decision was the "final action" under the TCA. . Therefore, the court found the Board "faced no statutory deadline"; it was not required to issue a written decision within 30 days of its vote. 8 @ 2009 Thomson Reuters 48 (\ \ / (), ! i , , j' i I I I i I I )