Agenda - Planning Commission - 10/06/2011

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Zoning Bulletin August 10, 2011 I Volume 5 I No. 15 Zoning Commission denied the application. St. Charles Tower appealed to the County's Board of Zoning Adjustment (the "Board"). The Board also de- nied the appeal because "the proposed location of the tower would primarily serve areas outside of Franklin County, not providing an adequate amount of benefit to Franklin County residents." St. Charles sued the Board and the County (hereinafter, collectively, the "County"). It claimed that the Board's decision violated the federal Tele- communications Act of 1996 ("TCA"). The TCA requires local board deni- als of requests to construct personal wireless service facilities to be "in writ- ing and supported by substantial evidence contained in a written record." St. Charles alleged that the Board's denial of the CUP was not supported by substantial evidence. Ultimately, St. Charles and the County agreed to a consent judgment that required the issuance of the CUP, as well as "any other permits necessary for [St. Charles] to being construction of its proposed facility." Trustees of the homeowners' association (the "Intervenors") of the sub- division in which St. Charles proposed to build the cell -phone tower had in- tervened in the litigation. They also moved to "alter, amend, or vacate the consent judgment." Among other things, they argued that the consent judg- ment violated Missouri law because it compelled the Board and the County to issue a CUP without following the procedures specified in the County's Land Use Regulations. The district court denied the Intervenors' motion for relief from the con- sent judgment. The court held that the consent judgment did not violate state law. It further held that, even if the consent judgment did violate state law, the Board's denial of the CUP had violated the TCA and the consent judgment's remedy was "necessary to correct this violation of federal law." The Intervenors appealed. DECISION: Reversed and matter remanded. The United States. Court of Appeals, Eighth Circuit, held that: (1) the consent decree's remedy violated Missouri law in that it compelled issuance of permits without regard to procedures specified in the County's Land Use Regulations; and (2) the consent decree's remedy was not necessary to remedy the alleged TCA violations, and thus, the consent judgment's violation of state law rendered the consent judgment invalid and unenforceable. The court explained that "[w]hile parties can settle their litigation with con- sent decrees, they cannot agree to `disregard valid state laws."' In other words, "[s]tate actors cannot enter into an agreement allowing them to act outside of their legal authority, even if that agreement is styled as a `consent judgment' and approved by a court." "While parties can settle their litigation with con- sent decrees, they ... cannot consent to do something together that they lack the power to do individually." Here, the County's Land Use Regulations required, among other things: actions of the Board be taken by a four -fifths vote; and written findings be made with respect to certain issues before the issuance of a CUP. None of these procedural requirements were fulfilled before the consent judgment, © 2011 Thomson Reuters 3