Smith Communications, LLC v. Washington County

Filing

OPINION FILED - THE COURT: James B. Loken, Lavenski R. Smith and Steven M. Colloton AUTHORING JUDGE:James B. Loken (PUBLISHED) [4274151] [14-2512]

United States Court of Appeals
For the Eighth Circuit
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No. 14-2512
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Smith Communications, LLC, an Arkansas limited liability company
lllllllllllllllllllll Plaintiff - Appellant
v.
Washington County, Arkansas
lllllllllllllllllllll Defendant - Appellee
v.
Gary Scott; Cathy Scott; Jerry Caudle; Kathy Caudle; Mike Anderson; Jessica Anderson
lllllllllllllllllllllIntervenor Plaintiffs - Appellees
v.
Smith Communications, LLC, an Arkansas limited liability company
lllllllllllllllllllllIntervenor Defendant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: February 11, 2015
Filed: May 12, 2015
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

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SMITH, Circuit Judge.
The Quorum Court of Washington County, Arkansas ("Quorum Court") denied
an application from Smith Communications, LLC ("Smith") to construct a cellular
tower. The district court1 upheld Washington County's denial of the application. We
affirm.
I. Background
Smith installs and maintains wireless communications facilities, commonly
referred to as "cellular towers" or "personal wireless facilities." In February 2013
Smith applied for a conditional use permit (CUP) to build an approximately 300-foottall cellular tower in Washington County. The county had zoned the property for the
proposed tower site "Agriculture/Single-Family Residential." Homes are located
within one-quarter of a mile from the tower's proposed site.
Section 11 of the Washington County Code (the "Zoning Code") governs
applications for CUPs in Washington County. Section 11–200(a) of the Zoning Code
provides that the Washington County Planning Board ("Planning Board") "shall hear
and decide requests for a conditional use and may authorize such if it finds," in
relevant part, the following:
(4)
(5)

(6)

That the proposed use is compatible with the surrounding area.
That the establishment, maintenance, or operation of the
conditional use will not be detrimental to or endanger the public
health, safety, morals, comfort or general welfare.
That the conditional use will not be injurious to the use and
enjoyment of other property in the surrounding area for the

1

The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
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purposes already permitted, nor substantially diminish and impair
property values within the surrounding area.
The Planning Board approved Smith's CUP application in early March 2013.
In the coming weeks, however, local residents appealed the Planning Board's decision
to the Quorum Court. The residents raised several arguments in their appeal, most of
which related to the requirements of Zoning Code § 11–200(a). Specifically, the
residents' arguments focused on "safety," "property values," the tower's "fit" with the
surrounding area, the tower's proximity to their homes, and concerns of residents who
had purchased their homes specifically because of the surrounding scenery and
views—which the proposed tower would allegedly "destroy."
The Quorum Court first heard the appeals on June 4, 2013. Members of the
public, members of the press, and attorneys for both sides attended the meeting. The
meeting continued for three hours, and the participants exhaustively discussed the
alleged benefits and problems associated with the proposed tower. The participants
specifically discussed the requirements of Zoning Code § 11–200(a); cellular phone
reception in the area; potential safety issues, particularly in the event of inclement
weather or tornadoes; the tower's placement and proximity to nearby residences; the
tower's fit with the surrounding area; and the tower's impact on nearby residents'
views and property values.
The Quorum Court held a follow-up meeting on June 24, 2013. Critically for
purposes of this appeal, minutes from the June 4, 2013 meeting were made available
to Smith three days earlier, on June 21, 2013. Attendants of the June 24, 2013 meeting
again included members of the public, members of the press, and attorneys for both
sides. And, once again, the participants discussed the requirements of Zoning Code
§ 11–200(a), cellular phone reception in the area, potential safety issues, the tower's
placement and fit with the surrounding area, and the tower's impact on nearby
residents' views and property values. At the end of the meeting, members of the
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Quorum Court voted 10 to 3 to reject Smith's CUP application. The members who
voted against the application believed it failed to meet the requirements of Zoning
Code § 11–200(a)(4), (5), and (6).
Four days later, on June 28, 2013, Washington County sent Smith an email
containing a letter of denial for the CUP application. The letter states that "[t]his letter
is your official notification that the [CUP] application . . . was denied by the
Washington County Quorum Court on June 24, 2013." Washington County sent
another email to Smith approximately one hour later, adding 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 the time, minutes from the June 4, 2013 meeting had already
been available to Smith for a week; minutes from the June 24, 2013 meeting, however,
were not available to Smith until July 22, 2013.
Smith filed suit against Washington County on July 24, 2013, asserting that
Washington 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
Telecommunications Act of 1996 ("Act"). See 47 U.S.C. § 332(c)(7)(B)(iii) and (v).
On March 31, 2014, the district court issued an order in which it held that Washington
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 Washington County to explain the reasons for its
denial in a writing separate from the minutes and written record. Accordingly, on
April 18, 2014, Washington 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."

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The district court ultimately found that this new statement complied with the
Act and, upon analyzing the reasons identified therein, concluded that substantial
evidence supported Washington County's denial of Smith's CUP application.
II. Discussion
Smith argues on appeal that the district court (1) denied Smith expedited review
in violation of the Act and (2) erred in holding that Washington County did not violate
the Act when it denied Smith's CUP application. "We review the district court's
application of [the] law de novo, its denial of equitable relief for abuse of discretion,
and its findings of fact for clear error." Stutzka v. McCarville, 420 F.3d 757, 761 (8th
Cir. 2005) (citing Lincoln Benefit Life Co. v. Edwards, 243 F.3d 457, 461 (8th Cir.
2001) (per curiam)). We review Washington County's denial of the CUP application
for "'substantial evidence contained in a written record.'" Sprint Spectrum, L.P. v.
Platte Cnty., Mo., 578 F.3d 727, 733 (8th Cir. 2009) (quoting 47 U.S.C.
§ 332(c)(7)(B)(iii)).
We note at the outset that Congress enacted the Act "to foster competition
among telecommunications providers, to improve the quality of their services, and to
encourage the rollout of new technologies without delay." USCOC of Greater Iowa,
Inc. v. Zoning Bd. of Adjustment of the City of Des Moines, 465 F.3d 817, 820 (8th
Cir. 2006) (citing City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115
(2005)). "One of the means by which [Congress] sought to accomplish these goals was
reduction of the impediments imposed by local governments upon the installation of
facilities for wireless communications, such as antenna towers." Abrams, 544 U.S. at
115.
Despite emphasizing the avoidance of unnecessary delays, Congress expressly
preserved the authority of any "State or local government or instrumentality thereof
over decisions regarding the placement, construction, and modification of personal
wireless service facilities." 47 U.S.C. § 332(c)(7)(A). This authority is subject to
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certain limitations under the Act, including, as relevant to this appeal, that any denial
of permission to construct a cellular tower must "be in writing and supported by
substantial evidence contained in a written record." Id. § 332(c)(7)(B)(iii).
A. Expedited Review
The Act provides that district courts "shall hear and decide" actions challenging
a local government's denial of permission to construct a cellular tower "on an
expedited basis." Id. § 332(c)(7)(B)(v). Smith argues largely that the district court
failed to provide expedited review because the court should have simply "order[ed]
the issuance of a permit" upon concluding that Washington County had failed to
provide an adequate written explanation for its denial.
Smith's argument fails, however, because Washington County did provide a
legally adequate explanation for its denial when it referred Smith to the meeting
minutes. Indeed, as the Supreme Court recently held, "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." T-Mobile S., LLC v. City
of Roswell, Ga., 135 S. Ct. 808, 816 (2015) (emphasis added).2 In this case, the
meeting minutes are sufficiently clear to "enable judicial review." Id. The June 4, 2013
meeting minutes alone contain thirty pages of detailed notes from the participants'
presentations and discussions about the tower. Washington County did not violate the
Act by relying on these meeting minutes to provide the written reasons for its denial.
We do note, however, that at the time the Quorum Court denied Smith's
application, only the minutes from the June 4, 2013 meeting had been made available.
The minutes from the June 24, 2013 meeting were not made available until July 22,
2

The Supreme Court issued the Roswell decision after the district court issued
its decision in this case. Prior to Roswell, the case law was unclear as to whether a
locality could rely on meeting minutes to constitute a written explanation for a denial
under the Act.
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2013. The Supreme Court has made clear that, as a general matter, a "locality must
provide or make available its written reasons at essentially the same time as it
communicates its denial." Id. Thus, because Washington County did not make the
June 24, 2013 minutes available until 24 days after it notified Smith in writing of its
denial, it failed to provide the minutes within the requisite time frame. See id. at 818
(holding that a city failed to "provide its written reasons essentially
contemporaneously with its written denial" because it issued the minutes at issue "26
days after the date of the written denial").
Washington County's failure to make the June 24, 2013 meeting minutes
available earlier, however, did not require the district court to grant Smith immediate
relief by ordering the issuance of a CUP. Washington County's reference to the June
4, 2013 meeting minutes—which, again, were already available at the time of the
written denial—informed Smith of the reasons for the Quorum Court's denial. The
June 4, 2013 minutes reflect extensive discussion of the requirements of Zoning Code
§ 11–200(a), safety issues, the tower's proximity to nearby residences, the tower's
detrimental impact on residents' views and property values, and the tower's fit with the
surrounding area. Not surprisingly, these same concerns were again discussed during
the June 24, 2013 meeting, which representatives of Smith also attended. The
residents and Quorum Court reiterated the same concerns which underlay their appeal
of the Planning Board's initial approval of Smith's CUP application months before the
June 2013 Quorum Court meetings.
Put simply, in light of these facts and the record before us, Smith received
adequate notice of the reasons for the Quorum Court's denial. Furthermore, assuming
arguendo that Washington County's failure to promptly make the latter meeting
minutes available somehow violated the Act, the violation was, at most, a harmless
error. See id. at 818–19 (noting that a locality's failure to make meeting minutes
available fewer than 26 days after the written denial may constitute "harmless error");
see also id. at 819 (Alito, J., concurring) ("I have trouble believing that [the party
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seeking to build a cellular tower,] which actively participated in the decisionmaking
process . . . was prejudiced by the . . . delay in providing a copy of the minutes.").3
B. Substantial Evidence
Smith argues that Washington County violated the Act by denying the CUP
application without substantial evidence supporting its decision. In that regard, Smith
raises various arguments, including that the tower would comply with applicable laws
and regulations, that the tower would not affect nearby property values, and that
aesthetic objections to the tower are merely generic "NIMBY" (meaning, "not in my
back yard") objections.
In reviewing the record for substantial evidence supporting the Quorum Court's
decision, we note the deferential nature of this standard of review:
[W]e cannot substitute our determination for that of the administrative
fact-finder just because we believe that the fact-finder is clearly wrong.
. . . If the [Quorum Court]'s findings are supported by some substantial
level of evidence (but less than a preponderance) on the record as a
whole . . . the [Quorum Court]'s decision must be affirmed. . . . We will
not reject the [Quorum Court]'s decision as unsupported by substantial
evidence because there exists the possibility of drawing two inconsistent
conclusions from the evidence.
USCOC of Greater Iowa, 465 F.3d at 821–22 (quotations and citations omitted).
3

Similarly, and in light of the same considerations, we hold that the district
court's decision to order an additional explanation from Washington County
independent from the meeting minutes was, at most, a harmless error.
To the extent that Smith argues the district court otherwise improperly delayed
any proceeding or action, thereby denying Smith the requisite expedited review, we
note that Smith neither sought a writ of mandamus nor appealed the remand to the
Quorum Court at the time the district court issued its decision.
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Upon thoroughly reviewing all of Smith's contentions and the record as a
whole, we conclude that substantial evidence supports the Quorum Court's denial of
Smith's application. As this court has already made clear, the Act's "'substantial
evidence' requirement is 'directed at whether the local zoning authority's decision is
consistent with the applicable local zoning requirements.'" Sprint Spectrum, 578 F.3d
at 733 (emphasis added) (quoting VoiceStream Minneapolis, Inc. v. St. Croix Cnty.,
342 F.3d 818, 830 (7th Cir. 2003)). In this case, the Quorum Court analyzed the 300foot tower's placement and proximity to nearby residences and reviewed evidence
(including pictures and simulations) of the specific areas in question. It similarly
evaluated arguments and evidence about, among other things, the tower's detrimental
impact on neighboring residents' unique views and property values. After analyzing
this and other relevant evidence, the Quorum Court found that the proposed tower was
not compatible with the neighboring property, would interfere with the use and
enjoyment of surrounding area, would significantly alter nearby residents' views, and
would harm property values in part because, as one Quorum Court member stated
after evaluating the evidence, he would not buy property in the area with the 300-foot
tower so close. In light of these considerations, the Quorum Court denied Smith's
application to construct the tower—as required under Zoning Code § 11–200(a).
This court in Sprint Spectrum addressed a similar scenario. It likewise held that
substantial evidence supported the denial of an application to construct a 153-foot
tower (which, notably, was half the size of the tower in this case). We specifically
noted that "aesthetic concerns can be a valid basis on which to deny Sprint's permit,
so long as the aesthetic judgment is grounded in the specifics of the case and not based
on generalized aesthetic concerns . . . that are applicable to any tower, regardless of
location." Id. (alteration in original) (quotation and citation omitted). In that regard,
we noted that the county "concluded that the property—although zoned
agricultural—was surrounded by residential neighborhoods," the tower would
"visually dominate an otherwise residential area," and "[t]hree owners of nearby
homes sent letters . . . in which they cited the residential character of the specific
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location and the negative visual impact that a tower would have on it." Id. at 733–34
(quotations omitted).
In sum, "[k]eeping in mind that the substantial evidence standard is 'essentially
deferential,' we conclude that the [Quorum Court] had before it substantial evidence
on the record as a whole that the tower's scale, its proximity to residences, and the
surrounding environment made approval inappropriate in view of the considerations
outlined in" Zoning Code § 11–200(a). Id. at 734 (citation omitted).
III. Conclusion
Accordingly, we affirm the decision of the district court.
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