NE Colorado Cellular v. City of North Platte

Filing

OPINION FILED - THE COURT: William Jay Riley, C. Arlen Beam and Lavenski R. Smith AUTHORING JUDGE:Lavenski R. Smith (PUBLISHED) [4188529] [13-3190]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3190
___________________________
NE Colorado Cellular, Inc., a Colorado corporation, doing business as Viacro Wireless
lllllllllllllllllllll Plaintiff - Appellant
v.
City of North Platte, Nebraska
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: May 13, 2014
Filed: August 22, 2014
____________
Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.
____________
SMITH, Circuit Judge.
NE Colorado Cellular, doing business as Viaero Wireless ("Viaero"), sought
to construct a telecommunications tower in the City of North Platte, Nebraska ("the
City"). The North Platte City Council ("City Council") voted to deny Viaero's
application for a permit to build the tower, finding that the tower would be
inharmonious with the neighborhood in which Viaero proposed to build. Viaero filed

Appellate Case: 13-3190

Page: 1

Date Filed: 08/22/2014 Entry ID: 4188529

suit against the City for violation of the Telecommunications Act of 1996 (TCA),
alleging that the City Council decision was neither "in writing" nor "supported by
substantial evidence." The district court1 upheld the City's decision. We affirm.
I. Background
Viaero is licensed by the Federal Communications Commission to provide
personal wireless services in Nebraska, including the City. Viaero sought to build a
telecommunications ["telecom"] tower in the City to improve its network coverage.
Viaero located what it considered a suitable site in a B-1 zoning area and negotiated
the purchase of that site.
Under applicable City ordinances, a B-1 zone is eligible for placement of a
telecom tower after receipt of a conditional use permit (CUP). The application for a
CUP must be reviewed by the City Planning Commission ("Commission") and
approved by the City Council. North Platte Code of Ordinances § 156.322 provides
that conditional uses must "be in harmony with the character of the area and the most
appropriate use of the land."
On March 11, 2012, Viaero applied for a CUP to install a 100-foot telecom
tower and related support structures at the aforementioned site. Viaero stated that the
tower would address a lack of reliable in-building wireless service in the City. On
April 24, 2012, the Commission conducted a public hearing on Viaero's application.
The Commission received both live testimony and letters from property owners near
the proposed tower site. After the hearing, the Commission issued a summary report,
which it provided to the City Council. The Commission's report recommended denial
of the application because the tower would not be in harmony with the character of
the area.

1

The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
-2-

Appellate Case: 13-3190

Page: 2

Date Filed: 08/22/2014 Entry ID: 4188529

The City Council conducted a public hearing on May 15, 2012. Two people,
a Viaero representative and the previous owner of the proposed tower site, spoke in
favor of the tower. Twelve residents spoke in opposition. The hearing minutes, which
summarized the residents' testimonies, state that the residents opposed the tower
because
it is not appropriate or harmonious for the historic neighborhood, it
could decrease the property values of the homes in the area, the tower
could be dangerous to the public, the tower will be an eyesore for the
busy intersection and there are other places in North Platte that would
be better suited for the tower.
The City Council voted 6-2 in favor of a motion denying the application. The
minutes of the council meeting summarize the motion and resolution:
Stoll moved and McGuire seconded the motion to find the request for a
Conditional Use Permit to allow a 100' tower and a communication
facility building located at [the proposed tower site] does not meet the
minimum standards stated in the North Platte Code of Ordinances
Section 156.322 and deny the Conditional Use Permit as requested
based on the following factual findings: 5. The use is not in harmony
with the character of the area and it is not the most appropriate use of the
land as it is a historic neighborhood and the tower could decrease
property values in the area. Roll call vote: "AYE": Barrett, Stoll,
McNea, McGuire, Carman, Steinbeck. "NAY": Pederson, Campbell.
Motion carried.
Viaero sued the City, claiming that the City violated the TCA. See 47 U.S.C.
§ 332. Viaero alleged several violations, only two of which are relevant here. First,
Viaero contended that the denial was not "in writing" as the TCA requires. Second,
Viaero contended that the decision was not supported by substantial evidence
contained in a written record. The parties stipulated to the relevant facts and filed

-3-

Appellate Case: 13-3190

Page: 3

Date Filed: 08/22/2014 Entry ID: 4188529

cross-motions for summary judgment. The district court granted the City's motion and
denied Viaero's motion.
The district court noted that legal authorities are split on the meaning of "in
writing" in the TCA and that the question remains open in this circuit. The majority
rule—followed by the First, Seventh, and Ninth Circuits, and urged by
Viaero—requires that a decision "(1) be separate from the written record; (2) describe
the reasons for the denial; and (3) contain a sufficient explanation of the reasons for
the denial to allow a reviewing court to evaluate the evidence in the record that
supports those reasons." New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir.
2002) (citing Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59–60 (1st Cir. 2001)).
The district court noted that this circuit has assumed without deciding that the
majority rule is correct. See Sprint Spectrum, L.P. v. Platte Cnty, Mo., 578 F.3d 727,
731–32 (8th Cir. 2009).
The minority rule—articulated by the Sixth Circuit, urged by the City, and
ultimately adopted by the district court—does not require that the decision and record
be separate writings as long as the record permits the reviewing court to "focus with
precision on the action that was taken and the reasons supporting such action."
Omnipoint Holdings, Inc. v. City of Southfield, 355 F.3d 601, 606 (6th Cir. 2004).
Here, the district court found that the City Council resolution satisfied the "in
writing" requirement because the motion and meeting minutes reflect the action taken
and "contained an explanation of the reasons sufficient to allow the Court to evaluate
the evidence in the record that supports those reasons."
The district court also found that the City's denial was supported by substantial
evidence. The court "read[ ] the City's denial as resting upon two separate grounds:
(1) the tower would not be in harmony with the character of the area, which was a
historic neighborhood; and (2) the tower could decrease property values in the area."

-4-

Appellate Case: 13-3190

Page: 4

Date Filed: 08/22/2014 Entry ID: 4188529

The court found that only the first reason was supported by substantial evidence, but
concluded that one ground was sufficient for the purposes of the TCA.
The court found that the tower's proposed height of 100 feet "would have
clashed with the surrounding area," supported by testimony that the tower would be
"the highest structure anywhere in the area and as such would be an eyesore." The
tower would be surrounded by one- and two-story buildings; nothing approaching
100 feet tall. According to the court, the height of the tower alone would suffice to
support the City's decision. The court found that "[s]ubstantial evidence also supports
the Council's conclusion that the tower would be incompatible with the historic
character of the neighborhood." Acknowledging that very little in the record describes
this "historic character," the court stated that it was "confident that the members of
the North Platte City Council know their city well enough that they can accurately
discern the character of its neighborhoods." The court concluded that resident
testimony that it was a "historic neighborhood" sufficed to support the City Council's
decision.
II. Discussion
"We review the district court's grant of summary judgment de novo, construing
all issues of material fact in the light most favorable to the nonmoving party."
USCOC of Greater Mo. v. City of Ferguson, Mo., 583 F.3d 1035, 1039 (8th Cir.
2009) (citation omitted).
"The TCA enactment in 1996 made substantial changes to the federal
regulation of telecommunications as Congress sought to accelerate rapidly private
sector deployment of advanced telecommunications and information technologies and
services to all Americans by opening all telecommunications markets to competition."
USCOC of Greater Mo., LLC v. Cnty of Franklin, Mo., 636 F.3d 927, 930 (8th Cir.
2011) (quotations and citations omitted). The TCA nevertheless "preserved the

-5-

Appellate Case: 13-3190

Page: 5

Date Filed: 08/22/2014 Entry ID: 4188529

authority of state and local governments over zoning and land use issues," with some
limitations. Id.
The TCA provides in relevant part:
A State or local government or instrumentality thereof shall act on any
request for authorization to place, construct, or modify personal wireless
service facilities within a reasonable period of time after the request is
duly filed with such government or instrumentality, taking into account
the nature and scope of such request.
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. § 332(c)(7)(B)(ii)–(iii).
Viaero contends that the City satisfied neither the "in writing" nor the
"supported by substantial evidence" requirements. Viaero argues that the district court
applied an improper interpretation of the "in writing" requirement and that under the
appropriate interpretation, the City's denial violates the TCA.
A. "In writing"
Courts have adopted four different interpretations of the TCA's "in writing"
requirement.2 The first, adopted by a number of district courts, requires that the denial
itself and the "written record" be separate documents. Smart SMR of N.Y., Inc. v.
Zoning Comm'n of Stratford, 995 F. Supp. 52, 57 (D. Conn. 1998). The Stratford
court reasoned that because "the statute draws a distinction between the written
2

The Supreme Court has granted a writ of certiorari to resolve the split.
T-Mobile S., LLC v. City of Roswell, Ga., 731 F.3d 1213 (11th Cir. 2013), cert.
granted, 134 S. Ct. 2136 (2014).
-6-

Appellate Case: 13-3190

Page: 6

Date Filed: 08/22/2014 Entry ID: 4188529

decision and the written record, they can clearly not be the same document." Id.
(quoting AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 979 F. Supp.
416, 428 (E.D. Va. 1997), rev'd, 155 F.3d 423 (4th Cir. 1998)). "Additionally, the
decision 'must contain written findings of fact tied to the evidence of record.'" Id. at
56 (quoting AT&T Wireless Servs. of Fla., Inc. v. Orange Cnty, 982 F. Supp. 856, 859
(M.D. Fla. 1997). In a later case, the same court determined that "[a] local zoning
authority must issue a decision in writing setting forth the reasons for the decision
and linking its conclusions to evidence in the record." Omnipoint Commc'ns., Inc. v.
Planning & Zoning Comm'n of Wallingford, 83 F. Supp. 2d 306, 309 (D. Conn. 2000)
(citation omitted). The Wallingford court reasoned that "[b]y failing to provide
reasons for its decision, the Commission places the burden on this Court to wade
through the record below in an attempt to discern the Commission's rationale." Id.
(quoting Smart SMR, 995 F. Supp. at 57). The Stratford/Wallingford rule effectively
requires formal findings of fact and conclusions of law, akin to the strictures of the
Administrative Procedure Act (APA). See Todd, 244 F.3d at 59.
The second approach, considered the majority rule, was articulated by the First
Circuit in Todd. The Todd court held that "the TCA requires local boards to issue a
written denial separate from the written record. That written denial must contain a
sufficient explanation of the reasons for the permit denial to allow a reviewing court
to evaluate the evidence in the record supporting those reasons." Id. at 60. The
Seventh and Ninth Circuits subsequently adopted this interpretation. See Helcher v.
Dearborn Cnty, 595 F.3d 710, 719 (7th Cir. 2010); MetroPCS, Inc. v. City & Cnty of
S.F., 400 F.3d 715, 722 (9th Cir. 2005).3

3

The Tenth Circuit followed this approach in an unpublished decision. U.S.
Cellular Corp. v. Bd. of Adjustment of City of Seminole, Okla., 180 F.Appx. 791,
793–94 (10th Cir. 2006) (per curiam). The Sixth Circuit ostensibly adopted the Todd
rule in New Par, 301 F.3d at 395–96, but subsequently modified it in Southfield, 355
F.3d at 605.
-7-

Appellate Case: 13-3190

Page: 7

Date Filed: 08/22/2014 Entry ID: 4188529

The First Circuit rejected the formal requirement of "findings of fact" in
Wallingford as having "no basis in the language of the [TCA]." Todd, 244 F.3d at 59.
The court held that because local boards "are primarily staffed by laypeople. . . . it is
not realistic to expect highly detailed findings of fact and conclusions of law." Id. at
59–60. The court nevertheless found that the approach adopted by the Fourth and
Eleventh Circuits infra too light, holding that "permitting local boards to issue written
denials that give no reasons for a decision would frustrate meaningful judicial review,
even where the written record may offer some guidance as to the board's rationale."
Id. at 60. The court noted that "[t]he TCA distinguishes between a written denial and
a written record, thus indicating that the record cannot be a substitute for a separate
denial." Id. (citation omitted). As such, "[e]ven where the record reflects
unmistakably the Board's reason for denying a permit, allowing the written record to
serve as the writing would contradict the language of the [TCA]." Id. (citation
omitted). In short, the Todd rule requires that a denial "must (1) be separate from the
written record; (2) describe the reasons for the denial; and (3) contain a sufficient
explanation of the reasons for the denial to allow a reviewing court to evaluate the
evidence in the record that supports those reasons." New Par, 301 F.3d at 395–96.
The Sixth Circuit developed a third approach to the TCA's "in writing"
requirement. In New Par, the court adopted the Todd rule, but the court took a
different tack in Southfield. In Southfield, the city council denied a permit after a
public hearing. Southfield, 355 F.3d at 603. In a formal resolution, the council voted
to deny the application and listed eight reasons for the denial. Id. The minutes of the
council meeting, which contained the resolution, constituted the only "writing"
containing the denial. Id. at 606. The Southfield court noted that "there is no guidance
in New Par as to what constitutes the written record." Id. at 605. The court opined
that "the TCA makes no mention of the writing being in a separate document." Id. at
606. The court reasoned that because the city council speaks through its resolutions,
the "formal resolution is a writing separate from the hearing record." Id. "Although
the minutes of a council meeting will encompass all the matters considered by the
-8-

Appellate Case: 13-3190

Page: 8

Date Filed: 08/22/2014 Entry ID: 4188529

council at that meeting, each resolution deals with only one discrete subject." Id. The
court found that this was sufficient to meet the "separate writing" requirement of the
TCA because "[t]he primary purpose of the separate writing requirement is to allow
a reviewing court to focus with precision on the action that was taken and the reasons
supporting such action." Id. Thus the Southfield rule requires only that a local board's
action be sufficiently discrete to allow a reviewing court to identify the action taken
and why it was taken.
The Fourth and Eleventh Circuits developed yet a fourth interpretation of "in
writing," on the opposite end of the spectrum from Wallingford. In Virginia Beach,
the Fourth Circuit confronted the following facts:
The Council ultimately voted unanimously to deny the
application, a decision recorded both in a two-page summary of the
minutes—describing the application, listing the names and views of all
who testified at the hearing, and recording the votes of each
councilman—and in a letter from the Planning Commission to the City
Council describing the application and stamped with the word
"DENIED" and the date of the City Council's vote. Consistent with its
usual practice, the Council did not generate written findings of fact
concerning its vote, nor did it produce a written explanation of the basis
for its vote.
155 F.3d at 425. The court held that "the City Council's decision clearly was 'in
writing.'" Id. at 429. The following year, the court held that "the secretary [of the city
council] writing 'Denied' on the first page of AT&T's application, in the stamped form
for approval or denial of this and similar requests, fulfills the 'in writing' requirement
of § 332(c)(7)(B)(iii)." AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of
Adjustment, 172 F.3d 307, 312 (4th Cir. 1999).
Like the Todd court, the Fourth Circuit rejected the Wallingford "findings of
fact" rule, holding that while the APA requires "a statement of . . . findings and
-9-

Appellate Case: 13-3190

Page: 9

Date Filed: 08/22/2014 Entry ID: 4188529

conclusions, and the reasons or basis therefor," § 332 of the TCA contains no such
requirement. Virginia Beach, 155 F.3d at 429–30. Noting that "Congress knows how
to demand findings and explanations" and did not do so in § 332, the court reasoned
that "the simple requirement of a 'decision . . . in writing' cannot reasonably be
inflated into a requirement of a 'statement of . . . findings and conclusions, and the
reasons or basis therefor.'" Id. at 430. The court held that the "substantial evidence"
requirement—not the "in writing" clause—ensured that the court received enough
information to allow for effective judicial review. Id.
The Eleventh Circuit similarly held that the "in writing" requirement is a light
burden. T-Mobile S., LLC v. City of Milton, Ga., 728 F.3d 1274 (11th Cir. 2013). Like
North Platte, the City of Milton first addressed a permit for construction of a telecom
tower through a planning commission (in Milton, the city considered three separate
permits for three proposed tower locations). Id. at 1277. The commission then made
a recommendation to the city council. Id. at 1278. After a public hearing, individual
city council members moved to deny two of the applications and "stated on the record
five 'not exhaustive' reasons for denial," whereupon the city council voted to deny the
applications. Id. The city council subsequently sent letters informing T-Mobile of the
denials but did not state the reasons for them. Id. at 1279. The hearings were
recorded, transcribed, and memorialized in the minutes, which "detail[ed] the reasons
given in support of and in opposition to each application, and the motions and their
grounds, and recite[d] the unanimous vote on them." Id. at 1279–80.
The Milton court rejected both the Wallingford and Todd (and implicitly New
Par and Southfield) rules as expansions of the statutory text. The court reasoned:
The words of the statute we are interpreting require that the
decision on a cell tower construction permit application be "in writing,"
not that the decision be "in a separate writing" or in a "writing separate
from the transcript of the hearing and the minutes of the meeting in
which the hearing was held" or "in a single writing that itself contains
-10-

Appellate Case: 13-3190

Page: 10

Date Filed: 08/22/2014 Entry ID: 4188529

all of the grounds and explanations for the decision." See 47 U.S.C. §
332(c)(7)(B)(iii). So, to the extent that the decision must contain
grounds or reasons or explanations, it is sufficient if those are contained
in a different written document or documents that the applicant is given
or has access to. All of the written documents should be considered
collectively in deciding if the decision, whatever it must include, is in
writing.
Id. at 1285.
We are persuaded that the Fourth and Eleventh Circuits have articulated the
better rule. Nowhere does the statutory text require that the denial and the "written
record" be separate writings. Section 332 requires only that the denial and the record
both be written. Section 332 does not require that the written denial state the reasons
for the denial. Congress may require an agency or board to state its findings. See, e.g.,
5 U.S.C. § 557(c). Congress did not do so here.
Here, the parties agree that the City Council's decision was written: the City
Council passed and memorialized a formal resolution. The TCA requires no more
than this. The City did not run afoul of the TCA by recording its decision in the
"written record."
B. "Supported by Substantial Evidence"
"The TCA's 'substantial evidence' requirement does not impose substantive
standards on local governments. Rather, it requires a reviewing court to determine
whether the local authority's decision comports with applicable local law." City of
Ferguson, Mo., 583 F.3d at 1042 (citing Platte Cnty, Mo., 578 F.3d at 733). The
"substantial evidence" standard is not a demanding one. "Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Substantial evidence, however, does not

-11-

Appellate Case: 13-3190

Page: 11

Date Filed: 08/22/2014 Entry ID: 4188529

mean a preponderance of the evidence." Menendez-Donis v. Ashcroft, 360 F.3d 915,
919 (8th Cir. 2004) (quotation and citations omitted).
In this case, several sections of the North Platte Code of Ordinances compose
the "applicable local law." The parties agree that the proposed site of the tower is
"eligible for the placement of a telecommunications tower after application, and
receipt, of a [CUP], which must be approved by the North Platte City Council." North
Plate Code § 156.322(A)(5) provides that a conditional use "shall be in harmony with
the character of the area and the most appropriate use of the land." The question
before us, therefore, is whether the City had substantial evidence before it that the
proposed tower would have been out of harmony with the character of the
neighborhood. See Omnipoint Corp. v. Zoning & Hearing Bd. of Pine Grove Twp.,
181 F.3d 403, 408 (3d Cir. 1999).
Here, the City Council had before it the testimony of a dozen residents that the
proposed tower would be an "eyesore," would be inappropriate for the neighborhood,
and would not be harmonious with the neighborhood.4 In the context of a zoning
decision, this is enough for a "reasonable mind" to accept as "adequate to support a
conclusion" that the proposed tower would be out of place in the neighborhood. See
Menendez-Donis, 360 F.3d at 919. Thus, the City's decision is supported by
substantial evidence.
The City Council's denial of a CUP to construct the proposed telecom tower
was both "in writing" and "supported by substantial evidence." The district court did
not err in granting summary judgment to the City.
4

We agree with the district court that "[t]he Council could have done a better
job articulating the nature of the neighborhood's historic character." However, the
"historic" nature of the neighborhood is not the dispositive issue. The question is
whether the proposed tower would have been out of character with the area,
regardless of how it is described.
-12-

Appellate Case: 13-3190

Page: 12

Date Filed: 08/22/2014 Entry ID: 4188529

III. Conclusion
The judgment of the district court is affirmed.
______________________________

-13-

Appellate Case: 13-3190

Page: 13

Date Filed: 08/22/2014 Entry ID: 4188529