Agenda - Planning Commission - 01/09/2014

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Zoning Bulletin November 10, 2013 ( Volume 7 I Issue 21 The Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia. ELEVENTH CIRCUIT (GEORGIA) (10/01/13)—This case addressed the issue of whether a city's three -sentence denial of a mobile phone ser- vice provider's request for a permit complied with the "in -writing" requirement of the federal Telecommunications Act provision that requires cell phone tower construction permit denials to be "in writing" and supported by substantial effort contained in a written record. The Background/Facts: T-Mobile South, LLC ("T-Mobile") submit- ted an application to construct a 108-foot-tall cell tower on a specific property in Roswell, Georgia (the "City"). The City's Planning and Zon- ing Division (the "Planning Department") concluded that all ordinance requirements for construction of the cell tower were met. The Planning Department recommended that the Mayor and the City Council approve the application, subject to certain conditions. On April 12, 2010, a public hearing was held on T-Mobile's application. After hearing much opposi- tion to the application, the City Council members concluded that the proposed cell tower would be "incompatible with the natural setting and surrounding structures, particularly due to the proposed tower's height being greater than the surrounding trees." The City Council passed a mo- tion to deny the application. Two days later, the Planning Department sent a letter to T-Mobile. The letter was three sentences long. It provided as follows: Please be advised the City of Roswell Mayor and City Council denied the request from T-Mobile for a 108' mono -pine alternative tower structure dur- ing their April 12, 2010 hearing. The minutes from the aforementioned hear- ing may be obtained from the city clerk. Please contact Sue Creel or Betsy Branch at [phone number]. A month later, T-Mobile filed a legal action against the City. It alleged that the City's denial of its cell tower application was not "in writing" and supported by substantial evidence in the record and would effectively pro- hibit theprovision of wireless service in violation of the federal Telecom- munications Act of 1996 ("TCA"). T-Mobile also sought an injunction, asking the court to order the City to grant it the requested permit. 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 T-Mobile. The court held that the City's short denial letter failed to satisfy the "in writing" requirement contained in 47 U.S.C.A. § 332(c)(7)(B)(iii) of the TCA. Section 332(c)(7)(B)(iii) requires that a state or local government's de- cision denying a request for a peumit to erect a cell tower be "in writing and supported by substantial evidence contained in a written record." The district court held that the "in writing" requirement necessitated that the City provide a separate written document delineating the specific reasons for its decision. © 2013 Thomson Reuters 3