Agenda - Council - 05/26/2015 - Laserfiche WebLink

Home

February 25, 2015 ( Volume 9 I Issue 4 Zoning Bulletin The United States Supreme Court held that the Act (§ 332(c)(7)(B)(iii)) does require localities to provide reasons why they deny applications to build cell phone towers. The court stressed that the reasons that must be given "need not be elaborate or even sophisticated, but rather . . . simply clear enough to en- able judicial review." The court based this holding on the plain language of the provisions of the Act, noting that it "would be considerably difficult for a reviewing court to determine whether a locality's denial was `supported by substantial evidence contained in a written record,' § 332(c)(7)(B)(iii), or whether a locality had `unreasonably discriminate[d] among providers of functionally equivalent services,' § 332(c)(7)(B)(i)(I), or regulated siting 'on the basis of the environmental effects of radio frequency emissions,' § 332(c)(7)(B)(iv), if localities were not obligated to state their reasons for denial." Moreover, the court found the Act's phrase "substantial evidence" was used as a "term of art" that describes how "an administrative record is to be judged by a reviewing court." Importantly, the court also held that localities are not required to provide their reasons for denying siting applications in the denial notice itself. Rather, the court concluded that localities "may state those reasons with sufficient clar- ity in some other written record issued essentially contemporaneously with the denial." In so holding, the court again looked to the text of the Act, finding nothing imposed any requirement that the reasons be given in any particular foiin. Thus, here, the court concluded that the City's detailed meeting minutes fulfilled the written reasons requirement. Although the court found that the Act does not require a locality to provide its written reasons in any particular format, and although the court found that a locality may rely on detailed meeting minutes as it did here, the court also held that a "locality must provide or make available its written reasons at essentially the same time as it communicates its denial." The court said that a locality can- not "stymie or burden the judicial review contemplated by the [Act] by delaying the reasons for a substantial time after it conveys its written denial" to an entity that only has 30 days within which to seek judicial review under the Act. Here, although the court found that the City had provided its reasons in writ- ing and did so in the acceptable form of detailed minutes of the City Council meeting, the court also concluded that the City failed to provide its written reasons for denial "essentially contemporaneously" with its written denial. The court found that the City's issuance of the detailed minutes 26 days after the date of the written denial letter and just 4 days before T-Mobile's time to seek judicial review would have expired, did not meet the Act's requirements. See also: U. S. v. Carlo Bianchi & Co., 373 U.S. 709, 83 S. Ct. 1409, 10 L. Ed. 2d 652 (1963). Case Note: In its decision, the court noted that a cell phone tower application denial itself need only be issued "within a reasonable period of time" (4' 332(c)(7)(B)(ii)), which has been interpreted to allow localities 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications. © 2015 Thomson Reuters