Agenda - Planning Commission - 05/06/2010

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i i March 25, 2010 ~ Volume 4 ~ No. 6 Zoning Bulletin I i ify personal wireless service facilities shall be in writing and supported ~~ ) by substantial evidence contained in a written record." (47 U.S.C.A. § 332(c)(7)(B)(~))• Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court issued summary judgment in favor of the Boazd. 1•n doing so, the court found that the Boazd's meet- ing Minutes fulfilled the Act's "in writing" requirement because they: "supplied the reasons underlying the ...Board's decision"; and "en- abled the court to efficiently judge the Boazd's findings and conclusions against the record." Bell appealed. The Court's Decision: Judgment of the district court affirmed. The United States Court of Appeals, Seventh Circuit, held that the Board's meeting Minutes satisfied the Act's "in writing requirement." In •so holding, the court (agreeing with the First, Sixth and Ninth Cir- cuits interpretation of the Act's "in writing" requirement) determined that :the Act's "in writing" requirement would be met so long as .the Board's written decision: "contains a sufficient explanation of the rea- sons for the permit denial to allow a reviewing court to evaluate the evi- dence in the record supporting those reasons." The court explained this was because the purpose of the "in writing" requirement "is to allow for { j meaningful judicial review of the decisions of local governments." The court said writing akin to a judicial opinion was not required since "lo- cal zoning boards typically are not populated with lawyers [or] judges." Rather, a decision "in writing" would be adequate if it "provides an explanation that allows. [the court], in combination with the written re- cord, to determine if the decision is supported by substantial evidence." Here, the court found that the 17-page meeting Minutes issued by the Boazd did provide an "adequate basis for judicial review of the Board's decision" to deny Bell's requested CUP. This was because the Minutes "clearly delineate[d]": "the issues that azose with [Bell's] application"; "the evidence that was presented by [Bell] and [residents opposed to the tower]"; ~"the concerns of [Bell] and [the] residents of the area;" and "the concerns of the Board members." The court found the Minutes also cited "specific provisions of the Ordinance that the [Board] found were not met by the application." Thus, the court found the Minutes provided the court with "an explanation that allow[ed] [the court], in combina- tion with the written record, to determine if the decision [was] supported by substantial evidence." See also: DiLeo a Ernst ~' Young, 901 F2d 624, Fed. Sec. L. Rep. (CCH) P 95228 (7th Cir. 1990). See also: New Par v. City of Saginaw, 301 F.3d 390, 2002 FED App. 0276P (6th Cir. 2002). ~ 2010 Thomson Reuters 44