Smith Communications, LLC an Arkansas limited liability company v. Washington County, Arkansas

Filing 50

MEMORANDUM OPINION AND ORDER denying 36 Motion for Relief. Signed by Honorable Jimm Larry Hendren on June 2, 2014. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

SMITH COMMUNICATIONS, LLC
an Arkansas limited liability company
v.

Civil No.

PLAINTIFF

13-5152

WASHINGTON COUNTY, ARKANSAS

DEFENDANT

GARY and CATHY SCOTT
JERRY and KATHY CAUDLE
MIKE and JESSICA ANDERSON

INTERVENORS

MEMORANDUM OPINION AND ORDER
The

plaintiff,

Smith

Communications,

LLC

("Smith")

has

asserted a claim under the Federal Telecommunications Act based on
the denial by defendant, Washington County, Arkansas ("Washington
County"), of a conditional use permit to build and operate a
personal wireless communications facility (referred to as the
“East Prairie Grove Tower Site”).
Pursuant to 47 U.S.C. § 332(c)(7)(B)(v), this claim is to be
reviewed

on

the

written

record

and

pursuant to

the Court’s

directive, the parties submitted a stipulated written record and
briefs concerning it.

Id. § 332(c)(7)(B)(iii).

The stipulated written record filed on September 30, 2013,
and, following its review of the same, the Court entered an Order
of March 31, 2014, remanding this matter to Washington County with

-1-

directions that, consistent with the requirements of the TCA, it
provide a written denial of the claim within thirty (30) days
thereafter.
The written denial has now been filed as an addendum to the
stipulated record and both plaintiff and Washington County have
filed briefs addressing the addendum.

In this order, the Court

will address the remaining issues presented by the plaintiff’s
motion

for

relief

under

the

Federal

Telecommunications

Act,

including the substantial evidence requirement of the Act.
BACKGROUND
Although recited in this Court’s previous order of March 31,
2014, it will be useful to reiterate the following background
information concerning this matter:
1.

The plaintiff in this action is Smith Communications,

LLC (hereinafter “Smith”).

The defendant is Washington County,

Arkansas.
Gary and Cathy Scott, Jerry and Kathy Caudle, and Mike and
Jessica Anderson are intervenors in this matter -– the proposed
location of the wireless facility is near their residences.
2.

Smith is an entity which installs and maintains wireless

communications facilities -- commonly referred to as “cellular
towers” or “personal wireless facilities.”
Smith leases a portion of real property for the purpose of
building and operating a wireless communications facility (the

-2-

“East Prairie Grove Tower Site”) from Storms Agri-Enterprises,
Inc., which owns the tract of real property containing the leased
premises and operates a farm thereon.

The property is located at

11183 Storms Road in Washington County, Arkansas.
3.

Smith brought this action following the denial of its

application for a conditional use permit by the Quorum Court of
Washington County, Arkansas and asserts in its complaint certain
violations

of

the

Federal

Telecommunications

Act

of

1996

(hereinafter the “FTA”).
4.

On or about January 25, 2013, a representative for Smith

filed an Application for Administrative Approval of Tower for the
construction of an approximately 300 foot high personal wireless
communications facility at the East Prairie Grove Tower Site. See
Stipulated Record (hereinafter “Record” Doc. Nos. 1-5).
5.

The Washington County Code (the "Tower Code") sets forth

the requirements and process for applicants seeking to construct
a wireless communications facility in Washington County, Arkansas.
Article VIII of the Tower Code governs Placement, Construction and
Maintenance of Antenna Arrays and Communications Towers.
6.

On February 6, 2013, -- allegedly at the direction of

Washington County -- Smith applied for a conditional use permit
(“CUP”) to construct and operate the wireless communications
facility.
In Washington County, an application for a conditional use

-3-

permit is governed by the Washington County Code (the “Zoning
Code”) -- specifically by Sec. 11-191.1(b) -- and is to be
evaluated utilizing the criteria set forth in Sec. 11.200 of the
Zoning Code. Sec. 11.200 provides:
(a) The Board shall hear and decide requests
conditional use and may authorize such if it finds:

for

a

(1) That a written application has been filed with the
Planning Office and the appropriate fee has been paid.
(2) That the applicant has provided proof that each
property owner as set out in section 11-204 has been notified by
return receipt mail.
(3) That adequate utilities, roads, drainage and other
public services are available and adequate or will be made
available and adequate if the use is granted.
(4) That
surrounding area.

the

proposed

use

is

compatible

with

the

(5) 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.
(6) That the conditional use will not be injurious to
the use and enjoyment of other property in the surrounding area
for the purposes already permitted, nor substantially diminish and
impair property values within the surrounding area.
(7) That the establishment of the conditional use will
not impede the normal and orderly development and improvement of
the surrounding area for uses permitted in the zone.
(b) If it is determined that there exist conditions that
could be imposed by the Board that would significantly lessen the
impact of the aforestated, then the Board has the power to impose
said conditions which shall be specifically set forth.
7.

The Washington County planning staff reviewed Smith's

application and issued a report recommending that the Washington

-4-

County Planning Board approve it.

Rec. Docs. 11-66.

On or about March 7, 2013, the Planning Board unanimously
approved the CUP application submitted by Smith by a vote of 5 to
0.

Rec. Docs. 10, 69, 149-151.
8.

Between March 21, 2013 and April 8, 2013, members of the

public filed “appeals” of the Planning Board approval of the CUP
application to the Washington County Quorum Court (the “Quorum
Court”).
The

Rec. Docs. Nos. 178-192.
twelve

appellants

of

the

Planning

Board

decision

completed appeal forms which set forth their reasons for the
appeal (Rec. Nos. 178-192) and legal counsel for some of the
appellants sent a letter to the Quorum Court dated April 15, 2013
(Rec. Docs. 255-256) and June 17, 2013 (Rec. Docs. 242-246).
9.

In preparation for consideration of the appeals, the

planning staff issued a Synopsis of Cell Tower Considerations
(Rec. Docs. 67-68), a staff report for the Quorum Court dated for
the June 4, 2013 meeting (Rec. Docs. 69-176) and a document called
the East Prairie Grove Tower Site CUP (Rec. Docs. 229-232).
10.

The planning staff again recommended that the Quorum

Court approve the CUP application.

Rec. Doc. 70.

The planning

staff reported to the Quorum Court that the proposed tower:
*

met and exceeded the required setback distances (Rec.

Docs. 71, 74);
*

met all applicable federal and state requirements (Rec.

-5-

Doc. 67 and 71);
*

is not located in a FEMA floodplain area (Rec. Doc. 51,

248, 230);
*

complies with the relevant CUP Application criteria

outlined in Washington County Code 11-200 (Rec. Doc. 248);
*

will provide better cellular coverage in the area of the

proposed tower site (Rec. Doc. 71-72, 229); and
*

has no adverse impacts on sites of Native American

significance (Rec. Doc. 59-60).
11.

The planning staff further reported that:

* fire safety concerns have been addressed by the Washington
County Fire Marshall and conditions have been placed on the
approval of the project to address such concerns (Rec. Docs. 13,
72);
*

the

Washington

County

Emergency

Services

Director

expressed support for more towers in rural Washington County
because 85% of 911 calls are placed from cell phones and better
coverage helps first responders (Rec. Docs. 63, 12-13, 67-68 and
229); and that
* a certified land appraiser stated that the cell tower will
not negatively affect property values of adjacent properties (Rec.
Docs. 49, 72) and that aesthetic concerns had been minimized by
using a thin 36-inch guyed-lattice type tower.

-6-

Rec. Docs. 75-77.

12.

The planning staff also presented an overview of their

analysis of the CUP application and the staff recommendation for
approval of the CUP Application at the June 4, 2013 Special
Meeting of the Washington County Quorum Court (Rec. Docs. 335-344)
and at the June 24, 2013 Special Meeting of the Washington County
Quorum Court.
13.

Rec. Nos. 291-297.

On June 4, 2013 -- and later on June 24, 2013, the

Quorum Court heard the appeals.

On June 24, 2013, the Quorum

Court voted to reject Smith's application with three members
voting in favor of it; ten members voting against it; and with one
member being absent and not voting.
14.

Rec. Doc. 322.

On June 28, 2013, a Washington County planner sent an

email to Smith containing the letter of denial for the CUP
application.
“This

Rec. Doc. 288.
letter

is

your

The letter states in full:
official

notification

that

the

Conditional Use Permit application for the development known
as the East Prairie Grove Tower Site CUP was denied by the
Washington County Quorum Court on June 24, 2013.”

Rec. Doc.

288.
15.

The Washington County staff sent another email to Smith

later on June 28, 2013, stating that:
“[t]he minutes and video of the first and last Quorum Court
meetings will act as the County’s written reason for denial.”
Rec. Doc. 288.

-7-

THE ADDENDUM
16.

On April 18, 2014, Washington County filed an Addendum

to Stipulated Record which includes Resolution No. 2014-04 of the
Quorum Court of Washington County, Arkansas, with Exhibit A to the
resolution being the “separate statement setting out the reasons”
for the denial of the Conditional Use Permit submitted by Smith.
17.

According to the written statement, the Conditional Use

Permit was denied:
due to the specific characteristics of the site at
issue, after hearing evidence and testimony at two
hearings (an inspection of the site and surrounding
property was also made).
The evidence showed, and the Quorum Court found,
that this was a rural area of mixed agricultural and
residential

use

and

that

the

appellants

had

an

exceptional view that would be significantly impacted by
the proposed tower which was sited quite close to the
property line of many of the surrounding properties;
despite the conditions that had been attached to it by
Planning staff.

(footnotes omitted)

Thus the Quorum Court found, in addition to other
findings as stated below, that the proposed tower was
incompatible with the surrounding area.
Washington County Code 11-200 states:

-8-

Sec. 11-200. Criteria for allowance of conditional
uses.
(a) The Board shall hear and decide requests for a
conditional use and may authorize such if it finds:
(1) That a written application has been filed with
the Planning Office and the appropriate fee has been
paid.
(2) That the applicant has provided proof that each
property owner as set out in section 11-204 has been
notified by return receipt mail.
(3) That adequate utilities, roads, drainage and
other public services are available and adequate or will
be made available and adequate if the use is granted.
(4) That the proposed use is compatible with the
surrounding area.
(5) 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.
(6) That the conditional use will not be injurious
to the use and enjoyment of other property in the
surrounding area for the purposes already permitted, nor
substantially diminish and impair property values within
the surrounding area.
(7) That the establishment of the conditional use will not
impede the normal and orderly development and improvement of the
surrounding area for uses permitted in the zone.
(b) If it is determined that there exist conditions that
could be imposed by the Board that would significantly
lessen the impact of the aforestated, then the Board has
the power to impose said conditions which shall be
specifically set forth.
When casting her vote, Justice of the Peace Eva
Madison cited subparagraphs 4, 5, and 6 and stated

-9-

specifically that she felt that this was an enjoyment of
life issue and that the tower was not compatible with
the surrounding use and that the proposed tower was not
harmonious

with

the

comfort

and

welfare

of

the

residents.
Justice of the Peace Candy Clark added that the
appellants had a “drop dead gorgeous” view resting her
vote on subparagraphs 4, 5 and 6.
Justice of the Peace Rick Cochran, in voting to
deny the Conditional Use Permit, stated that he was
relying on subparagraphs 4 and 6 further noting that
this was a compatibility and enjoyment of property
issue.

He further stated that he would not buy any of

the property with a tower being so close.
Following the above stated votes and remarks the
remaining Justices of the Peace who voted against the
issuance of the permit, Rex Bailey, Mary Ann Spears,
John Firmin, Ann Harbison, Joe Patterson, Jimmy Mardis,
and Bill Ussery cited subparagraphs 4 and/or 6 in
casting their votes.

(Footnotes omitted)

DISCUSSION
18.

The Telecommunications Act of 1996 (hereinafter “the

TCA”), under which the jurisdiction of this Court is invoked, was
intended

by

Congress

to

-10-

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 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.
However, in the TCA, Congress specifically preserved the
authority of local zoning boards “over decisions regarding the
placement, construction, and modification of personal wireless
service facilities,” subject to some limitations.
332(c)(7)(A).

47 U.S.C. §

Among these limitations is a requirement that a

decision like the one at issue here -- denying permission to
construct a cellular tower -- “be in writing and supported by
substantial evidence contained in a written record.”
332(c)(7)(B)(iii).

The TCA gives federal courts jurisdiction to

review such decisions.
19.

Id. §

Id. § 332(c)(7)(B)(v).

Smith argues that Washington County’s denial of the CUP

did not satisfy the writing requirement of the TCA and was not
supported by substantial evidence contained in the written record.
These contentions will be taken up separately.

-11-

WRITING REQUIREMENT
20.

The Eighth Circuit has not directly addressed the “in

writing” requirement of the TCA.1

However, as stated in its

previous order, this Court will follow the view of the majority of
the Circuits to address the “in writing” requirement who have
stated

that

a

“‘written

denial

must

contain

a

sufficient

explanation of the reasons for the permit denial,’ although it
need not set forth ‘formal findings of fact and conclusions of
law.’” Sprint Spectrum, L.P. v. Platte County, Missouri, 578 F.3d
727, 732 (8th Cir. 2009)(quoting Sw. Bell Mobile Sys., Inc. v.
Todd, 244 F.3d 51, 59-60 (1st Cir. 2001))(also citing MetroPCS,
Inc. v. City & County of San Francisco, 400 F.3d 715, 722 (9th Cir.
2005); New Par v. City of Saginaw, 301 F.3d 390, 395-96 (6th Cir.
2002)).
The majority view holds that decisions by local boards “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.

Further, courts following the majority view

1

Although Sprint Spectrum, L.P. v. Platte County, Missouri, 578 F.3d
727 (8th Cir. 2009) applies the majority view on the issue of the “in
writing” requirement, it did so because the parties agreed the majority
view was the correct approach.
In applying the majority view, the
decision specifically states “we will assume, without deciding, that they
are correct.” Id. at 732.
-12-

“conclude that something more than a bare written statement of
denial is necessary, because the judicial review contemplated by
the TCA is frustrated if a reviewing court has no means to
ascertain the rationale behind the decision of a local zoning
board.”

Sprint, 578 at 731-32.2

See also USOC of Greater Iowa,

Inc. V. City of Bellevue, Nebraska, 279 F.Supp. 2d 1080, 1084
(D.Neb. 2003); Sprint Spectrum L.P. v. County of St. Charles, Mo.,
2005 WL 1661496 (E.D. Mo. 2005).
As noted above, a Washington County planner sent an email to
Smith on June 28, 2012, containing the letter of denial for the
CUP application. Rec. Doc. 288.

The letter states in full: “This

letter is your official notification that the Conditional Use
Permit application for the development known as the East Prairie
Grove Tower Site CUP was denied by the Washington County Quorum
Court on June 24, 2013.”

Rec. Doc. 288.

Washington County staff sent another email later on June 28,
2013, stating that “[t]he minutes and video of the first and last
Quorum Court meetings will act as the County’s written reason for
denial.”

Rec. Doc. 288.

These two emailed letters state no reasons, separate from the

2

By contrast, courts in the Fourth and Eleventh Circuits have
followed a much less restrictive interpretation of the “in writing”
requirement. See T-Mobile South, LLC v. City of Milton, Ga., 728 F.3d
1274 (11th Cir. 2013); T-Mobile South, LLC v. City of Roswell, Ga., 731
F.3d 1213 (11th Cir. 2013); AT&T Wireless PCS, Inc. v. City Council, 155
F.3d 423 (4th Cir. 1998).
-13-

written record, for the denial of the CUP.

For this reason, the

Court previously found that the “in writing” requirement of the
TCA was not satisfied by the emailed letters and remanded the
matter to Washington County for a written denial, consistent with
the requirements of the TCA.

As also previously noted, a written

denial has now been filed as an addendum to the stipulated record
and both Smith and Washington County have filed briefs addressing
the contents of the addendum.
(a)

The Court will first address plaintiff’s argument,

presented in its brief in response to the addendum, that the
addendum should not be considered and that this Court should,
instead, order injunctive relief due to the violation of the “in
writing” requirement.

The Court has already rejected that notion

by previously ordering that the "in writing" requirement be
satisfied.
As

other

courts

have

found,

this

Court

believes

the

appropriate remedy for such a violation “may not always be an
injunction, but may sometimes be a remand, depending on the nature
of the board’s decisions and the circumstances of the case.”
National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d
14, 22 (1st Cir. 2002). See also USOC of Greater Iowa, v. City of
Bellevue,

Nebraska,

279

F.Supp.

2d

1080,

1088

(D.Neb.

2003)(citation omitted) ("[R]emand may be appropriate in cases
where the record reflects that the decision maker had a legitimate

-14-

concern that was either not addressed or was not adequately
addressed.") -- as cited in USCOC of Greater Missouri v. county of
Franklin, Missouri (575 F.Supp. 2d, 1096, 1102). Here, legitimate
concerns are reflected in the Quorum Court minutes.

While those

minutes do not meet the “in writing” requirement of the TCA, it
was appropriate to remand so the Court can understand and review
those concerns.

Accordingly, the argument is rejected and the

Court will consider the materials presented in the addendum.
(b)

As set forth above, the addendum includes a written

statement by the Quorum Court that states, in part, that the
Conditional

Use

Permit

was

denied

“due

characteristics of the site at issue . . . .

to

the

specific

The evidence showed,

and the Quorum Court found, that this was a rural area of mixed
agricultural and residential use and that the appellants had an
exceptional view that would be significantly impacted by the
proposed tower . . . . [and] in addition to other findings . . .
that the proposed tower was incompatible with the surrounding
area.”
A

written decision must only

“(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

Court finds the written decision contained in the addendum in

-15-

compliance with the TCA.
SUBSTANTIAL EVIDENCE
21.

The Court must next address whether the Quorum Court’s

decision is supported by substantial evidence as required by the
TCA.
The Eighth Circuit has interpreted Section 332's substantial
evidence standard in accordance with the traditional standard
employed by federal courts in reviewing a federal agency action.
See

USCOC

of

Greater

Iowa,

465

F.3d

at

821.

Under

this

traditional 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
Board’s findings are ‘supported by some substantial
level of evidence’ (but less than a preponderance) on
the record as a whole (‘[c]ontrary evidence may not
simply be ignored on review’) so that a reasonable factfinder could reach the same conclusion as did the Board,
the Board’s decision must be affirmed.... We will not
reject
the
Board’s
decision
as unsupported
by
substantial
evidence
because
there
exists
‘the
possibility of drawing two inconsistent conclusions from
the evidence.’
Id. at 821-22 (internal quotations and citations omitted).
The plaintiff argues that the reasons set forth by the Quorum
Court are generalized aesthetic concerns (NIMBY objections) which
are not sufficient to establish substantial evidence.

However,

aesthetic concerns can be a valid basis on which to deny a permit
as long as the aesthetic reasons are “grounded in the specifics of
the case” and are not based on “generalized aesthetic concerns

-16-

. . . that are applicable to any tower regardless of location.”
Sprint Spectrum, L.P. v. Platte County, 578 F.3d 727, 733 (8th Cir.
2009).

Further, “[t]he TCA’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 (quoting VoiceStream Minneapolic, Inc.
v. St. Croix County, 342 F.3d 818, 830 (7th Cir. 2003)).
Among

other

things,

the

Washington

County

Zoning

Code

requires a finding “(4) That the proposed use is compatible with
the surrounding area” and “(6) That the conditional use will not
be injurious to the use and enjoyment of other property in the
surrounding

area

for

the

purposes

already

permitted,

nor

substantially diminish and impair property values within the
surrounding area.”
The Washington County Quorum Court specifically found that
the

property

at

issue

was

not

compatible

with

a

wireless

communications facility and that the allowance of such a facility
would be injurious to the use and enjoyment of the property in the
surrounding area.

Those findings appear to be supported by those

voting against the application who either stated, or adopted,
reasons tied to requirements 4 and 6 of Section 11-200:

that the

proposed tower would not be compatible with the surrounding uses
of property; that it would not be harmonious with the comfort and
welfare of the residents; that the tower would negatively affect

-17-

the views enjoyed by people on property nearby; and a belief that
persons would not buy any of the properties nearby with the tower
in place.
Employing the traditional standard to be used for judicial
review of agency determinations, the Court cannot substitute its
determination for that of the administrative fact-finder just
because it might believe that the fact-finder is, or might be,
wrong.

Instead,

if

those

findings

are

supported

by

some

substantial level of evidence (but less than a preponderance) on
the record as a whole, so that a reasonable fact-finder could
reach the same conclusion, the Court must affirm them.

Here,

keeping in mind that the foregoing standard is "essentially
deferential" (See Sprint, 578 F.3d 727, 734 -- citing MetrolPCS,
400 F.3d at 725), the Court concludes that Washington County had
before it substantial evidence on the record as a whole that the
tower's preeminence on the landscape; its proximity to residences;
its dominance of the views available to occupiers of adjacent
properties; and the effects of its presence on the values and
aesthetics of nearby properties made approval inappropriate in
view

of

the

considerations

outlined

in

Section

11-200

--

particularly considerations 4 and 6.
For the foregoing reasons, this Court finds that the decision
of the Washington County Quorum Court was based on substantial
evidence

and

that

Smith’s

motion

-18-

for

relief

under

the

TCA

(document #36)

should be, and hereby is,

DENIED.

IT IS SO ORDERED this 2nd day of June, 2014.

/S/JIMM LARRY HENDREN
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

-19-