Agenda - Planning Commission - 06/02/2005

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Page 2 --April 25, 2005 Telecommunications -- City fails to comply with certain provisions of Telecommunications Act Lower court gives city 60 days to reconsider permit denials Citation: Tennessee v. City of Chattanooga, 6th U.S. Circuit Court of Appeals, No. 03-6608 (2005) The 6eh U.S. Circuit has j~risdiction over Kentucky, Michigan, Ohio, and Tennessee. TENNESSEE (00_/24/05) -- W'~reless Income Properties LLC constructed, owned, and managed telecommunications towers across the United States. Wireless filed several permit applications with the city of Chattanooga to build new towers. The perm/ts were eventually denied. Wireless sued, arguing the denials violated the Telecommunications Act, specifically the requirement that a denial of a permit request had to be "sup- ported by substantial evidence contained in a written record." The court gave the city 60 days to reconsider Wireless' applications. Wireless appealed, arguing the court's order violated its rights because the 60-day opportunity to reconsider the applications made Wireless' claim under the Telecommunications Act irrelevant -- the city had not made a final decision on whether to grant or deny the permits, so Wireless had not yet suffered a legal injury. DECISION: Reversed. The proper remedy was an order compelling the city to grant Wireless' permit applications. It was clear the city denied the permit applications without a written denial and without providing a written record supporting its decision. If a municipal body denied a permit application, and the denial violated the Telecommunica- tions Act's "in writing" and "substantial evidence:' requirements, a court had to order the city to grant the permit immediately. The district court gave the city 60 days to act upon the permit applications. Clearly, this would subject the parties to further litigation, and the city would inevitably reject the application again. The only difference would be that the city would reject the application in a formal written decision, with some sort of written record. Congress intended the Telecommunications Act to avoid multiple rounds of litigation. Any other decision would further prolong the process, and do nothing to protect Wireless' rights. see also: Nextel Partners [nc. v. Kingston Township, 286 E3d 687 (2002). see also: preferred Sites LLC v. Troup County, 296 F. 3d 12_/-0 (2002). VISIT OUR WEBSITE at www. quinlan.com 114 © 2005 Ouinlan PuOlishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048.