Agenda - Planning Commission - 01/09/2014

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October 25, 2013 1 Volume 7 I Issue 20 Zoning Bulletin ELEVENTH CIRCUIT (GEORGIA) (09/05/13)—This case ad- dressed the issue of whether a federal Telecommunications Act provi- sion that requires cell phone tower construction permit denials to be "in writing" requires the decisions to be in a "separate writing," as op- posed to simply the writing of the hearing transcript or minutes. The Background/Facts: T-Mobile South, LLC ("T-Mobile") wanted to build three cell phone towers in Milton, Georgia (the "City") so that it could provide reliable in -home cell phone service for its exist- ing customers in that area. Each of the three properties where T-Mobile wanted to locate its towers was zoned "agricultural." The City zoning regulations required T-Mobile to get a use permit in order to build the towers in the "agricultural" zone. Accordingly, in November 2009, T-Mobile applied to the City for use permits to construct the three towers. At the conclusion of public hearings on the permit applications, the planning committee voted to recommend denial of the peiniits. The City Council denied two of the peiiiiit applications and conditionally approved the third. The City sent three separate letters to T-Mobile notifying it of the City's decisions. One letter was sent for each application. Two of the letters denying the applications for use permits did not recite the reasons why those applications were denied. Each one simply stated that the application was denied. A third letter informed T-Mobile that one of its applications had been approved subject to several conditions. T-Mobile then filed a lawsuit against the City. It alleged violations of the federal Telecommunications Act of 1996 (the "Act") and sought injunctive relief. The lawsuit challenged the denial of the applications for two of the cell phone tower construction permits. It also challenged the conditional approval of the third application on the theory that the conditions put on approval effectively made it a denial. T-Mobile claimed that the City's action on each of the three peiiuit applications violated provisions of the Act, including the provision that denials of applications be "in writing and supported by substantial evidence contained in a written record" (47 U.S.C.A. § 332(c)(7)(B)(iii)). Specifically, T-Mobile maintained that the writing requirement of the statute could only be satisfied if the decision was announced or reflected in a written document that contained a statement of reasons and that was separate from any hearing transcript or minutes of a meeting or hearing. Since, the City's denial and conditional approval letters did not detail reasons for the decision in writing, T-Mobile contended that they violated the Act's writing requirement. The district court agreed. It entered an order concluding that the City had not met the writing requirement of § 332(c)(7)(B)(iii) with its deni- als of the permit applications for two of the proposed locations 6 © 2013 Thomson Reuters