Agenda - Planning Commission - 08/06/2015

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Zoning Bulletin June 25, 2015 1 Volume 9 1 Issue 12 Telecommunications—County denies conditional use permit application for cellular tower Permit applicant argues denial failed to comply with Telecommunications Act procedural requirements and was not supported by substantial evidence Citation: Smith Communications, LLC v. Washington County, Ark., 2015 WL 2193027 (8th Cir. 2015) The Eighth Circuit has jurisdiction over Arkansas, Iowa, Minnesota, Mis- souri, Nebraska, North Dakota, South Dakota. EIGHTH CIRCUIT (ARKANSAS) (02/15/11)—This case addressed the issues of whether: (1) a county provided a telecommunications conditional use petniit applicant with adequate notice of the reasons for the county's denial of the pewit; and (2) the county's denial of the permit application was supported by substantial evidence. The Background/Facts: Smith Communications, LLC ("Smith") sought to construct a 300 -foot -tall cellular tower in Washington County, Arkansas (the "County"). The property on which the proposed tower was to be located was zoned "Agriculture/Single-Family Residential." Smith applied to the County for a conditional use permit to build the cellular tower. Section 11-200(a) of the County's zoning code governs applications for conditional use permits ("CUPs"). Among other things, § 11-200(a) provides a CUP may be granted if the proposed use: ". . . (4) . . . is compatible with the surrounding area; (5) . . . will not be detrimental to or endanger the public health, safety, moral, comfort or general welfare; [and] (6). ... will not be injurious to the use and enjoyment of other property in the surrounding area for the purposes already permitted, nor substantially diminish or impair prop- erty values in the surrounding area." The County Planning Board approved Smith's CUP application. Local residents appealed that approval to the County's Quorum Court. They argued, among other things, that the proposed cellular tower would detrimen- tally affect their property values and would not be compatible with the sur- rounding area. The Quorum Court held two meetings on the appeal, and ultimately voted to reject Smith's CUP application, finding it failed to meet the requirements of zoning code § 11-200(a(4), (5), and (6). Four days after the Quorum Court reached its decision, the County sent Smith an e-mail containing a letter of denial for the CUP application. Ap- proximately one hour later, the County sent Smith another e-mail stating that "[t]he minutes and video of the first and last Quorum Court meetings will act as the County's written reason for denial." At that time, minutes from the first meeting had already been available to Smith for a week; minutes from the © 2015 Thomson Reuters 5