Agenda - Planning Commission - 11/06/2014

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Zoning Bulletin October 10, 2014 I Volume 8 I Issue 19 Telecommunications Act —City denies conditional use permit application for wireless telecommunications facility, memorializing its resolution in the written meeting minutes Permit applicant argues denial failed to meet the Telecommunication Act's "in writing" and "supported by substantial evidence" requirements Citation: NE Colorado Cellular, Inc. v. City of North Platte, Neb., 2014 WL 4116809 (8th Cir. 2014) The Eighth Circuit has jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. EIGHTH CIRCUIT (NEBRASKA) (08/22/14)—This case addressed the issue of what satisfies the "in writing" of the Telecommunications Act. It addressed whether the Act requires that the denial and the "written record" be separate writings. More specifically, it addressed whether a city council's formal written resolution denying a proposed telecommunications tower satisfied the Act's requirement that a denial be "in writing" and "supported by substantial evidence." The Background/Facts: NE Colorado Cellular, doing business as Viaero Wireless ("Viaero"), sought to construct a telecommunications tower in a B-1 zoning area in the City of North Platte, Nebraska (the "City"). Under applicable City ordinances, a B-1 zone was eligible for placement of a telecommunications tower after receipt of a conditional use permit ("CUP"). The City Code required that conditional uses "be in harmony with the character of the area and the most appropriate use of land." In March 2012, Viaero applied to the City for a CUP for the proposed telecom- munications tower. After a public hearing on the CUP application, at which 12 residents spoke in opposition of the tower, the City Council voted to deny the ap- plication because it found the tower would be "inharmonious with the neighbor- hood" in which Viaero proposed to build. The written minutes of the Council meeting summarized the City Council's resolution. Viaero later sued the City. It claimed that the City violated the federal Telecommunications Act of 1996 ("TCA") (47 U.S.C.A. § 332). Section 332 of the TCA provides that: Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify 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)(ii)-(iii).) Viaero contended that the City Council decision denying its CUP application was neither "in writing" nor "supported by substantial evidence" as required by the TCA. Both parties asked the court to find there were no material issues of fact in dispute and to issue summary judgment in their favor on the law alone. © 2014 Thomson Reuters 5