Agenda - Planning Commission - 08/06/2015

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June 25, 2015 1 Volume 9 1 Issue 12 Zoning Bulletin second meeting, however, were not available to Smith until several weeks later. Smith filed suit against the County. Smith asserted that the County failed to provide a legally adequate explanation of its reasons for the denial and that the denial was not based on substantial evidence in violation of the Telecom- munications Act of 1996 (the "Act"). (47 U.S.C. § 332(c)(7)(B)(iii) and (v).) The district court held that the County could not rely on the meeting minutes to constitute a legally adequate explanation for the denial under the Act. The court, therefore, remanded the matter to the Quorum Court and required the County to explain the reasons for its denial in a writing separate from the minutes and written record. Accordingly, on April 18, 2014, the County filed an additional explanation, again reciting the requirements of § 11-200(a)(4), (5), and (6) and stating that the denial was based on the tower's proximity to surrounding properties, its detrimental impact on neighboring residents' "exceptional view," and its "incompatib[ility] with the surrounding area." The district court ultimately found that new statement complied with the Act. The district court also concluded that substantial evidence supported the County's denial of Smith's CUP application. Smith appealed. On appeal, Smith argued that: (1) the district court failed to provide expedited review of Smith's appeal of the CUP denial, as required by the Act (47 U.S.C.A. § 332(c)(7)(B)(v)), because the district court "should have simply order[ed] the issuance of a permit' upon concluding that [the County] had failed to provide an adequate written explanation for its denial"; and (2) the County violated the Act by denying the CUP application without substantial evidence supporting its decision. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Eighth Circuit, first held that the County had provided a legally adequate explanation for its CUP denial when it referred Smith to the meeting minutes for an explanation of the denial. Under the law, said the court, "a locality may rely on detailed meeting minutes" to provide its written reasons for denial, "so long as the locality's reasons are stated clearly enough to enable judicial review." Here, the court found that the meeting minutes were sufficiently clear to "enable judicial review." The meet- ing minutes from the first meeting alone contained 30 pages of detailed notes from the participants' presentations and discussions about the tower. Still, the court did recognize that, by failing to provide Smith with the meet- ing minutes from the second meeting until 24 days after notifying Smith of its denial, the County violated the Act's requirement that written reasons be made available at "essentially the same time as [the locality] communicates its denial." However, the court found that failure was, at most, a harmless error, and did not require the district court to grant Smith immediate relief by order- ing the issuance of a CUP since the meeting minutes from the first meeting were already available at the time of the written denial and informed Smith of the reasons for the denial. Thus, the court concluded that Smith received ade- quate notice of the reasons for the Quorum Court's denial of its CUP applica- tion, in compliance with the Act. The court also held that substantial evidence supported the Quorum Court's © 2015 Thomson Reuters