PI Telecom Infrastructure V, LLC et al v. Georgetown-Scott County Planning Commission
MEMORANDUM OPINION & ORDER: (1) 18 FIRST MOTION for Summary Judgment by PI Telecom Infrastructure V, LLC and other Plaintiffs is GRANTED. (2) 21 MOTION for Summary Judgment by Georgetown-Scott County Planning Commission filed by Georgetown-Scott County Planning Commission is DENIED. (3) Dft Georgetown-Scott County Planning Commission is ORDERED to provide any and all permits necessary for the construction of the proposed wireless facility. Signed by Judge Karen K. Caldwell on 2/10/2017.(GLD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
PI TELECOM INFRASTRUCTURE V,
LLC, a Delaware Limited Liability
Company, CELLCO PARTNERSHIP
D/B/A VERIZON WIRELESS, a
Delaware General Partnership,
ALBERT DAVID BURKE, an
CIVIL ACTION NO. 5:16-46-KKC
MEMORANDUM OPINION AND
Plaintiffs, PI Telecom Infrastructure V, LLC, Cellco Partnership d/b/a Verizon
Wireless, and Albert Burke, (collectively as the Applicants), challenge the
“Commission”), denial of their application to construct a cell phone tower on a 36.5
acre tract of land in Scott County, Kentucky, as violative of the Telecommunications
Act of 1996, 47 U.S.C. § 151 et seq. (the “TCA”) and Kentucky law. Applicants seek
an order from this Court directing the Commission to grant their application for the
This matter is now before the Court on the parties’ cross-motions for summary
judgment. For the reasons discussed herein, the Applicants’ motion for summary
judgment is granted and the Commission’s motion is denied.
A. Telecommunications Act
Congress enacted the TCA to promote competition between service providers
that would inspire the creation of higher quality telecommunications services and to
encourage the rapid deployment of new telecommunications technologies. See City of
Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005). In so doing, “Congress
recognized zoning decisions by state and local governments had created an
inconsistent array of requirements, which inhibited both the deployment of personal
communications services and the rebuilding of a digital technology-based cellular
telecommunications network.” Preferred Sites, LLC v. Troup County, 296 F.3d 1210,
1214 (11th Cir. 2002) (citing H.R.Rep. No. 104–204, at 94 (1995), reprinted in 1996
U.S.C.C.A.N. 10, 61). “Congress also acknowledged ‘there are legitimate State and
local concerns involved in regulating the siting of such facilities,’” Preferred Sites, 296
F.3d at 1214 (quoting H.R. Rep. No. 104–204, at 94–95 (1995), reprinted in 1996
U.S.C.C.A.N. 10, 61), and drafted the Act so as to “‘preserve[ ] the authority of State
and local governments over zoning and land use matters except in . . . limited
circumstances.’” Id. (quoting H.R. Rep. No. 104–458, at 207–08 (1996), reprinted in
1996 U.S.C.C.A.N. 124, 222).
Therefore, the TCA was designed to strike a proper balance between two
competing and often clashing policy concerns: national need for the growth of wireless
telephone service and local authority to control the placement of those needed cell
phone towers. See H.R. Conf. Rep. No. 104–458, at 207–09 (1996); see also Omnipoint
Commc’ns, Inc. v. City of White Plains, 430 F.3d 529, 531 (2d Cir. 2005). On one side
of the balance, the TCA generally “preserves traditional authority of state and local
governments to regulate the location, construction, and modifications” of wireless
communications facilities such as cell phone towers. T-Mobile South, LLC v. City of
Roswell, Ga., 135 S. Ct. 808, 814 (2015) (internal quotations omitted). On the other
side, the TCA imposes specific substantive and procedural limitations on that
authority by reducing the impediments that local governments can impose to defeat
or delay the installation of wireless communications facilities and by protecting
against “irrational or substanceless decisions by local authorities.” Sw. Bell Mobile
Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001); T-Mobile Cent. LLC v. Unified Gov’t
of Wyandotte Cnty., Kansas City, Kan., 546 F.3d 1299, 1306 (10th Cir. 2008).
As a part of these limitations, the TCA provides that local cell tower regulation
“shall not prohibit or have the effect of prohibiting the provision of personal wireless
services.” § 332(c)(7)(B)(i)(II). To enforce the substantive limitations on localities, the
TCA also mandates that “[a]ny 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.” § 332(c)(7)(B)(iii). In addition, the TCA provides a
mechanism for enforcement if any party is, in their view, adversely affected by a
locality’s decision. See § 332(c)(7)(B)(v).
In this case, the Court is called upon to enforce the balance Congress sought to
PI Telecom constructs, owns, and manages wireless telecommunications
facilities that are used by national and regional wireless carriers to provide personal
wireless service to customers. (Compl. ¶ 1). Verizon is a national wireless carrier
licensed by the Federal Communications Commission that provides wireless
communication services within its licensed areas, including Scott County, Kentucky.
(Compl. ¶ 2). PI Telecom and Verizon entered into a lease with Mr. Burke, who owns
a 36.5-acre tract of land, permitting PI Telecom and Verizon to construct a 195-foot
monopole wireless communications facility on the Burke property.
Verizon sought to construct the wireless communication facility after radio
frequency engineers analyzed Verizon’s existing network and coverage needs and
identified a “significant gap” in Verizon’s coverage in the area east of I-75 and south
of Paris Road (U.S. 460) in Scott County. Verizon then enlisted PI Telecom to develop
a wireless communications facility within the “significant gap” discovered by Verizon
engineers. PI Telecom considered several sites, but identified Mr. Burke’s property
as the parcel that would provide the “optimum coverage for [Verizon’s] wireless
service” and would “comply with local zoning requirements related to set backs.”
The Court will only consider the evidence contained in the record that the Commission itself purportedly
considered. See T-Mobile Cent., LLC v. City of Grand Rapids, No. 1:06-CV-747, 2007 WL 1287739, at *4 (W.D.
Mich. May 2, 2007) (“[W]hen evaluating whether the [commission’s] decision is supported by substantial
evidence, the Court may consider only that evidence contained in the administrative record which was
presented to the [commission].”); Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment, 606 F. App’x 669, 672 (3d
Cir. April 20, 2015) (holding that an analysis under § 332(c)(7)(B)(iii) “applies to decisions made solely on the
basis of the factual record before the agency and are the subject of deferential substantial evidence review”).
Therefore, the Tillotson emails dated January 22 and 25 will not be considered. The substance of the material,
however, was made available to the Commission when Mr. Tillotson presented at the public hearing and is
included in the DVD of the public hearing.
(Binder Submitted By Applicant for Planning Commission – Tab D – Alternative Site
Analysis, p. 4).
On October 1, 2015, Applicants submitted their Uniform Application to the
Commission for consideration. In the Uniform Application, Applicants proposed to
construct “a 255’ self-support wireless communications tower with a 5’ lightening
arrestor for a total structure height of 260’.” (Planning Commission Folder – A-1).
The Uniform Application included: (1) FCC License Documentation; (2) a site
development plan; (3) a site survey; (4) a vertical tower profile; (5) a map of adjoining
landowners; (6) directions to the site; (7) tower and foundation designs; (8) a copy of
the lease agreement with Mr. Burke; (9) a list of residents notified about the proposed
tower; (10) notice to adjoining landowners and the Commission; (11) a radio frequency
engineer report; (12) a geotechnical study report; and (13) a list of FCC registered
antenna structures within a three-mile radius of the proposed facility. (Planning
Commission Folder – A-1).
In the weeks after the Uniform Application was submitted, the Commission
raised several issues with the application, including the height of the proposed
structure and compliance with the Commission’s resident notification policy.
(Planning Commission Folder – A-5). Specifically, a Planning Department email
dated October 16, 2015, commented that the 260’ tower would require a variance from
the Scott County zoning ordinance. (Planning Commission Folder – A-5).
On November 30, 2015, Applicants and the Commission entered into an
agreement to extend the time the Commission had to make a final decision on the
Uniform Application. Under KRS § 100.987(4)(c), a planning commission must:
Advise the applicant in writing of its final decision within sixty (60) days
commencing from the date that the uniform application is submitted to
the planning commission or within a date certain specified in a written
agreement between the local planning commission and the applicant. If
the planning commission fails to issue a final decision within sixty (60)
days and if there is no written agreement between the local planning
commission and the applicant to a specific date for the planning
commission to issue a decision, the uniform application shall be deemed
As a result of the agreement, both Applicants and the Commission agreed to postpone
the final-decision date to January 15, 2016. (Planning Commission Folder – A-4).
On December 22, 2015, almost a month after the agreement to extend the time
to make a final decision, Applicants submitted an amended Uniform Application. The
amended application included the following changes:
1. Revised zoning drawings and surveys changing the tower to a 195’
monopole tower with a 4’ lightning arrestor for a total height of 199’.
2. Revised tower and foundation drawings of the proposed monopole
3. Revised Geotechnical Report.
4. A report from [a] Verizon engineer describing the coverage gap that
the 195’ monopole tower could remedy.
(Planning Commission Folder – A-1; DE 18-1, p. 6 n. 5).
The Commission’s Planning Staff prepared and submitted a report on January
14, 2016, after reviewing the Uniform Application and the December 22nd addendum.
After detailing the various aspects of the amended Uniform Application, the Planning
Staff concluded that “[t]he proposal appears to meet the conditions of the Zoning
Ordinance and the Subdivision & Development Regulations.” (Planning Commission
Folder – A-2, Staff Report, p. 4). In addition, the Staff Report addressed specific
concerns of local property owners regarding the proposed tower. Regarding concerns
about the tower’s environmental impact, the Staff Report indicated that the proposed
tower was located “outside of all Environmentally Sensitive Areas as described by
ordinance and the Comprehensive Plan” and that the tower was “not located in the
flood plain . . . as defined by the Comprehensive Plan.” (Planning Commission Folder
– A-2, Staff Report, p. 4). Concerning whether the Applicants made sufficient effort
to co-locate, the Planning Staff noted that “[t]he Applicant provided documentation
describing the site selection process. There are no existing towers or sufficiently tall
structures near enough for the Applicant to co-locate on that will allow them to
address their gap in coverage.” (Planning Commission Folder – A-2, Staff Report, p.
On the same day, the Applicants’ Uniform Application went before the
Commission for public hearing. Mr. Summers, a member of the Planning Staff, began
the proceedings by reviewing the Commission’s Planning Staff Report. Mr. Summers
summarized the Staff Report for the Commission and reaffirmed the Staff Report’s
finding that the Uniform Application complied with the applicable ordinances and
comprehensive plan. (Planning Commission Folder – A-2, Minutes, p. 5). Mr.
Summers also addressed the numerous letters and communications from members of
the public concerning the tower and dismissed many of the raised concerns as having
been addressed in the Staff Report. (Planning Commission Folder – A-2, Minutes, p.
Attorney David Pike then began his presentation for Applicants. Mr. Pike
reviewed the Uniform Application with the Commission and specifically opined to the
Commission that the proposed tower in no way violated the comprehensive plan.
(Planning Commission Folder – A-2, Minutes, p. 6; DVD of Public Hearing 1:41:00 to
2:35:00). As a part of his presentation, Mr. Pike submitted a planning report, a
property value report, and a tower engineering report. He also made the experts who
created those reports available for cross-examination. Mr. Pike then asked the
Commission to stipulate that each expert adopted their respective reports as their
testimony. (DVD of Public Hearing 2:20:00 to 2:23:00). Mr. Pike also tendered the
Staff Report and Applicants’ Hearing Binder into the record. (DVD of Public Hearing
2:23:00 to 2:24:00). No objections were heard.
After making his presentation, Mr. Pike addressed several questions from the
Commission concerning the height of the proposed tower. Mr. Pike called Verizon’s
engineer, Mr. Arbabshirani, to answer specific concerns about the coverage area of
the proposed tower and its possible overlap with any neighboring towers. (Planning
Commission Folder – A-2, Minutes, p. 7; DVD of Public Hearing 2:27:12 to 2:29: 34).
Before opening the meeting to the public, counsel for the Commission, Mr.
Perkins, provided his initial thoughts about the legal arguments Mr. Pike made in
his presentation. Mr. Perkins opined that Mr. Pike was “very accurate” in his telling
of the applicable law and how it related to the Uniform Application. (DVD of Public
Hearing 2:49:10 to 2:49:40).
After Mr. Pike’s presentation, the Chairman of the Commission, Mr. Jones,
opened the meeting to the public. Several area residents spoke in opposition to the
application. (Planning Commission Folder – A-2, Minutes pp. 7-13). Mr. Woodson
spoke to his concern that the cell tower site would be located on particularly prime
farmland, a location with immense value to the local residents. (Minutes, p. 7, DVD
2:52:00 to 2:53:30). Next, Ms. Rowles and Mr. Irwin spoke to the collective concern of
local residents who felt that the tower’s construction, while potentially lucrative for
Mr. Burke, would come at the expense of local Scott County residents. (Planning
Commission Folder – A-2, Minutes pp. 8-9).
Mr. Tillotson spoke next. Mr. Tillotson asserted several reasons for why the
Commission should reject the Uniform Application. Referring to Zoning Ordinance
2.55(F)(19), Mr. Tillotson noted that Applicants failed to submit co-location
documentation. He argued that Applicants were unjustified in failing to provide the
required co-location documentation because the application itself relied on erroneous
information. (DVD of Public Hearing 03:25:23 to 03:33:38). He also argued that the
Uniform Application contravened the comprehensive plan because construction of the
communications tower would disregard the plan’s goal to protect sensitive and
historic areas in Scott County and, specifically, would jeopardize proposed future
plans to preserve the sensitive area where the tower would be located. (DVD of Public
After Mr. Tillotson, several other citizens stood to object to the Uniform
Application, citing environmental concerns about the construction of the tower and
other general concerns about the aesthetic impact and health hazards that a cell
phone tower would cause. (Planning Commission Folder – A-2, Minutes pp. 11-13).
Mr. Pike responded to the public comments by noting that many of the
concerns addressed by the residents, while sincere, simply have no relevance in the
applicable law and as to whether the Uniform Application should be approved.
(Planning Commission Folder – A-2, Minutes, p. 13). He also emphasized that the
Uniform Application is supported by the Zoning Ordinances and that Applicants
complied with all the requirements in submitting the application. (Planning
Commission Folder – A-2, Minutes p. 13).
Once Mr. Pike concluded his response, more public comments were heard. The
dialogue largely mirrored that of the first round of public comments. Two new
objections were raised, however. Mr. Tillotson again spoke to express his opinion that
both the comprehensive plan and Applicants’ omission of the required co-location
documentation provided the Commission with a sufficient basis on which to deny the
Uniform Application. He also stated that Applicants submitted reports after the
corrections deadline. (Planning Commission Folder – A-2, Minutes pp. 14-15). Mr.
Summers responded by telling the Commission that it is not unusual for applicants
to submit new supporting documentation late. (Planning Commission Folder – A-2,
Minutes p. 15). After Mr. Perkins noted that the Commission and Applicants agreed
under Kentucky law to render a decision by January 15, Mr. Offutt, another resident,
raised his concern about the Commission’s ability to consider the voluminous
application in the short time frame prior to the January 15 deadline established by
Kentucky law. (Planning Commission Folder – A-2, Minutes p. 15).
After several more minutes of back and forth between members of the public,
the Commission, and Mr. Pike, Chairman Jones closed the public hearing. The
Commission then discussed the matter among themselves. A few minutes later,
Commissioner Sulski made a motion to deny the Uniform Application based on “the
wrong location on the map,” “lack of proof of collocating,” and “sloping of a bank 70-80’
to Elkhorn Creek from the site.” (Planning Commission Folder – A-2, Minutes p. 17;
DVD of Public Hearing 6:01:10). Commissioner Sulski made the motion “to deny and
defer to a higher court.” (DVD of Public Hearing 06:01:37). Commissioner Sulski’s
motion was seconded by Commissioner Shirley. (Planning Commission Folder – A-2,
Minutes p. 17). By a roll call vote, the motion to deny the application carried six to
one, with Commissioner Moran dissenting. (Planning Commission Folder – A-2,
Minutes p. 17).
On February 11, 2016, the minutes of the public hearing were approved and
sent to Applicants on February 22, 2016. Aside from the minutes, the record is void
of any written documentation expressly denying the Uniform Application.
Three days before the minutes of the public hearing were approved, Applicants
file suit under the TCA and Kentucky law, seeking an order from this Court requiring
the Commission to grant their Uniform Application for the proposed cell phone tower.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists when the evidence
shows “that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “The mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
The moving party has the initial burden of identifying those parts of the record
that establish the absence of a genuine issue of material fact. Chao v. Hall Holding,
285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by showing
“that there is an absence of evidence to support the non-moving party’s case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the movant has satisfied this burden, “the nonmoving party must go
beyond the pleadings and come forward with specific facts to show there is a genuine
issue for trial.” Chao, 285 F.3d at 424 (citing Celotex, 477 U.S. at 324). The nonmoving
party, however, “must do more than show there is some metaphysical doubt as to the
material fact. It must present significant probative evidence in support of its
opposition to the motion for summary judgment.” Chao, 285 F.3d at 424 (internal
“When reviewing cross-motions for summary judgment, the court must
evaluate each motion on its own merits and view all facts and inferences in the light
most favorable to the nonmoving party.” Wiley v. United States, 20 F.3d 222, 224 (6th
Cir. 1994) (citing Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.
The trial court is under no duty to “search the entire record to establish that it
is bereft of a genuine issue of material fact,” and “the nonmoving party has an
affirmative duty to direct the court’s attention to those specific portions of the record
upon which it seeks to rely to create a genuine issue of material fact.” In re Morris,
260 F.3d 654, 655 (6th Cir. 2001).
The parties have filed competing motions for summary judgment. Applicants
argue that the Commission failed to submit a written denial and that the decision
rendered by the Commission was not otherwise supported by substantial evidence
contained in the written record as required by 47 U.S.C. § 332(c)(7)(B)(iii). Applicants
also allege that substantial evidence shows that the Commission’s decision has the
effect of “prohibiting the provision of personal wireless services” in violation of 47
U.S.C. § 332(c)(7)(B)(i)(II). Lastly, Applicants allege that the Commission’s failure to
issue a written decision within the agreed upon timeframe violated KRS 100.987(4)(c)
and was otherwise arbitrary.
The Commission does not address these contentions. Instead, the Commission
argues that Applicants’ submission of the December 22nd addendum constituted a
“new” application, which thereby renders moot the entirety of Applicants’ motion for
The Court will address these contentions in turn, beginning with the issue
raised by the Commission.
A. Whether Applicants’ Amended Uniform Application Constitutes a “new
application” to Create a Genuine Issue of Material Fact
The sole argument put forth by the Commission in the entirety of its moving
papers is as follows. When Applicants submitted a supplement to their Uniform
Application on December 22, 2015, they, in effect, submitted an entirely new Uniform
Application, and this material alteration resets any obligation the Commission had
under its agreement with Applicants under KRS 100.987(4) to render a written
decision by January 15, 2016. This change, the Commission suggests, creates a
genuine issue of fact that renders all of Applicants’ TCA and state law claims moot
and, if the Court held otherwise, it would infringe upon the due process rights of the
citizens of Scott County. (DE 21-1, p. 8). As a remedy, the Commission asks the Court
to remand the case to the Commission to repeat the application review process.
As an initial matter, the Court finds that no genuine issue of material fact
exists in the present case. Neither party disputes that Applicants submitted the
December 22nd addendum to their original Uniform Application. Neither party
disputes that it was this amended application that was analyzed by the Planning
Staff, submitted to the Commission, and subsequently denied by the Commission.
Here, the Commission raises an issue of law, arguing that the “new” application
should reset the statutory deadlines agreed upon by the parties and required by the
As a threshold matter, Applicants argue that the Commission should be
estopped from presenting this “new application” theory because they received no
indication throughout the application process that the amended application was
anything but an amendment (DE 22, p. 7) and that the issue is nevertheless waived
because the Commission failed to make the argument at the administrative level (DE
Parties have the duty to preserve error in an administrative hearing. See
Freytag v. C.I.R., 501 U.S. 868, 899 (1991) (consideration of alleged error during
administrative hearing is “procedurally barred as a result of petitioner’s failure to
raise it in his administrative proceeding”); Cox v. Benefits Review Bd., 791 F.2d 445,
447 (6th Cir. 1986) (reviewing court cannot “consider an argument which has not been
raised in the agency proceeding which precedes the appeal”); Howard v. Cumberland
River Coal Corp., No. 205-CV-1704-WC, 2016 WL 4490579, at *2 (Ky. Ct. App. Aug.
26, 2016) (citing Urella v. Ky. Bd. of Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997)).
(“[F]ailure to raise an issue before an administrative body precludes that issue from
The Court finds that the issue of a “new application” was never raised at the
public hearing, nor did the Commission even discuss on record that the December 22,
2015 amendment to the Uniform Application should be considered a “new
application.” In support of the notion that the issue was raised, the Commission
points to Mr. Offutt’s complaint about whether the Commission had sufficient time
in which to consider the voluminous Uniform Application in all of its parts. (DVD of
Public Hearing 05:36). But nowhere in his remarks did Offutt suggest that
Applicants’ amendment to the Uniform Application should serve to reset the
applicable deadlines. Moreover, the Commission did not even discuss the time crunch
after Offutt raised concerns and did not mention that the deadline should be extended
because of the December 22nd addendum.
The only other instance in which the “new” application issue was ostensibly
addressed is found in Mr. Tillotson’s speech. In response to Applicants’ counsel’s
discussion of the co-location reports, Mr. Tillotson remarked that “the additional
information  provided by the applicant . . . was submitted after the deadline for
changes to the application.” (DVD of Public Hearing 5:18-5:20). However, neither Mr.
Tillotson nor the Commission specify the deadline to which he was referring. Mr.
Summers’ response to the concern indicates that there may have been a deadline for
submitting application changes, (Planning Commission Folder – A-2, Minutes p. 15),
but no specifics are discussed. In any event, the Commission did not address the issue
and did not lodge any objection to any of the material submitted by Mr. Pike. Thus,
the issue of “a new application” is not properly before this Court.
The Commission fails to offer any authority that supports the notion that a
change in an application somehow resets the application process and untethers it
from the requirements of the TCA or the parties’ agreed upon January 15, 2016
deadline made pursuant to KRS 100.987(4)(c).
The Commission cites Hampson v. Boone County Planning Commission, 460
S.W.3d 912 (Ky. Ct. App. 2014), in support of its argument. However, the case does
not help the Commission’s cause. Although far from deciding the issue, Hampson
suggests that applications can be modified or amended without restarting procedural
deadlines as long as the parties do not trigger any statutory requirements while
amending to the application. Hampson does nothing, however, to suggest that an
amendment to an application creates a “new” application that resets all of the
Commission’s existing obligations under Kentucky law or the TCA. Without more,
the Court rejects this argument.
Separate from whether the amended application constituted a “new
application” to extend the time in which the Commission had to respond, the inclusion
of the supplemental information provided by Applicants did not violate procedural
due process. The fundamental requirement of procedural due process is simply that
all affected parties be given “the opportunity to be heard at a meaningful time and in
a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The record
reflects that the Commission was given the opportunity to be heard on every matter
related to the construction of the wireless communications tower, specifically the
December 22, 2015 amendment that was submitted by Applicants. Indeed, the
Commission’s own Planning Staff Report, presented by Mr. Summers at the public
hearing, used the changes in the supplement in explaining Applicants’ application to
the Commission. (Planning Commission Folder – A-2, Staff Report pp. 1-3; Binder of
Material from Hearing on January 14, 2016 – B-2, Planning Commission Staff
PowerPoint presentation). The Court fails to see how the December 22, 2015
supplement violated the procedural due process rights of the Commission or the
residents of Scott County when the Commission was presented with and presumably
relied upon the very information it now argues should reset all of the Commission’s
Therefore, because the Commission waived its ability to bring its argument
and because that argument is nevertheless unpersuasive, the Court finds that the
Commission is not entitled to the relief it seeks on these grounds.
With the resolution of the Commission’s argument, the Court now turns to
Applicants’ substantive claims under the TCA and Kentucky law.
B. Whether the Commission Failed to Satisfy the TCA’s Writing Requirement in
Violation of 47 U.S.C. § 332(c)(7)(B)(iii).
The next issue before the Court is whether the Commission violated §
332(c)(7)(B)(iii). Applicants argue that the Commission violated § 332(c)(7)(B)(iii)
when it failed to issue written reasons for denying the Uniform Application
“essentially contemporaneously” with the January 14, 2016 denial vote at the public
hearing. The Commission does not directly dispute this argument. The Court
concludes that because it failed to provide a decision for its denial in writing, the
Commission violated the TCA’s writing requirement.
Before directly offering the reasons for determining that the Commission
violated § 332(c)(7)(B)(iii), the Court pauses to layout important background
necessary to untangle Applicants’ arguments.
The writing requirement of the TCA, § 332(c)(7)(B)(iii), and the thirty-day
commencement-of-suit requirement, § 332(c)(7)(B)(v), are necessarily interwoven
when analyzing certain TCA claims. However, the writing requirement and the
thirty-day clock in which to challenge an adverse decision are wholly separate
concepts that work consecutively.
Under § 332(c)(7)(B)(iii), “[a]ny 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.” Thus, the statute places an affirmative duty upon a
locality to act and to prevent noncompliance with the TCA.
Section 332(c)(7)(B)(v), on the other hand, directs a course of action for any
party seeking review of an adverse decision. It provides that “any person adversely
affected by any final action or failure to act by a State or local government or any
instrumentality thereof that is inconsistent with this subparagraph may, within 30
days after such action or failure to act, commence an action in any court of competent
jurisdiction.” § 332(c)(7)(B)(v). In other words, it merely provides a timing
requirement for parties who wish to seek judicial review of an adverse decision.
The time within which parties must challenge an adverse ruling is controlled
by § 332(c)(7)(B)(v). The thirty-day clock does not begin to tick until the locality’s
administrative decision is definitive enough to qualify as a “final action” or a “failure
to act.” § 332(c)(7)(B)(v). To complicate things, the TCA does not define “final action.”
However, as the United States Supreme Court noted, “final action” is the issuance of
the written notice of denial, not the subsequent issuance of reasons explaining the
denial. See Roswell, 135 S. Ct. at 817 n.4 (“The relevant ‘final action’ is the issuance
of the written notice of denial, not the subsequent issuance of reasons explaining the
denial.”) (citing Bennett v. Spear, 520 U.S. 154, 177–178 (1997) (agency action is
“final” if it “mark[s] the consummation of the agency's decision making process” and
determines “rights or obligations” or triggers “legal consequences” (internal quotation
Like “final action,” the TCA does not define what constitutes a “failure to act.”
However, the FCC addressed the issue in In the Matter of Petition for Declaratory
Ruling to Clarify Provisions of Section 332(c)(7)(b) to Ensure Timely Siting Review &
to Preempt Under Section 253 State & Local Ordinances That Classify All Wireless
Siting Proposals As Requiring A Variance, 24 F.C.C. Rcd. 13994, 14013 (2009) (the
“Shot Clock Ruling”). In that case, the FCC found that a municipality’s failure to act
on an application for the construction of a new wireless service facility within 150
days of the application’s submission was presumptively unreasonable and constituted
a “failure to act” that triggers the thirty-day clock to seek judicial review. Id. at 32,
37. However, the Shot Clock Ruling also explained that:
[A] rigid application of this cutoff to cases where the parties are working
cooperatively toward a consensual resolution would be contrary to both
the public interest and Congressional intent. Accordingly, we clarify
that a “reasonable period of time” may be extended beyond 90 or 150
days by mutual consent of the personal wireless service provider and the
State or local government, and that in such instances, the
commencement of the 30–day period for filing suit will be tolled.
Id. at 49.
A decision from this district highlights an application of “failure to act” under
the TCA. In Cellco Partnership v. Franklin County, Ky., a planning commission
argued that the plaintiff had improperly filed the action in federal district court
because the plaintiff filed the action before the planning commission’s denial was
final. 553 F.Supp.2d 828, 842 (2008). The planning commission argued that the
thirty-day clock did not begin to run until June 14, the day on which the Planning
Commission approved the minutes of an earlier meeting. Id. at 842. The Court noted
that while the Planning Commission was correct in that there was no “final action”
until June 14, it nevertheless found that the plaintiff’s application was timely because
the Planning Commission did not make a final decision on the plaintiff’s application
by April 26, the date by which both parties agreed a decision would be made. Id. In
a way, Cellco presents the inverse of the Shot Clock Ruling. While parties can agree
to extend the presumptive deadline, parties can also establish a date on which a
decision must be made. In both situations, the failure to act by a specific date triggers
the thirty-day clock for adversely affected parties to file a complaint.
As opposed to establishing when a party can bring a complaint and seek a
remedy, a violation of the TCA’s writing requirement answers the question of how a
party can challenge an adverse decision and provides a cause of action for an
adversely affected party once he or she can bring an action. The Supreme Court
recently addressed the TCA’s writing requirement. In Roswell, the Supreme Court
rejected the majority view, including the Sixth Circuit’s holding in New Par v. City of
Saginaw, 301 F.3d 390 (6th Cir. 2002), that reasons for denial of an application must
be stated in a denial letter or notice itself, and. In pertinent part, the Court held:
that localities must provide or make available their reasons, but that
those reasons need not appear in the written denial letter or notice
provided by the locality. Instead, the locality’s reasons may appear in
some other written record so long as the reasons are sufficiently clear
and are provided or made accessible to the applicant essentially
contemporaneously with the written denial letter or notice.
Id. at 811–12. In Roswell, the Court found that detailed minutes could suffice
as an acceptable form of writing to convey reasons for denial. Id. at 818. To satisfy
the “in writing” requirement, then, “these reasons need not be elaborate or even
sophisticated, but rather . . . simply clear enough to enable judicial review.” Id. at
While holding that the reasons for denial need not be given in the same
document denying an application, the Court also crafted a timing element into its
holding. The Court held the locality must issue its reasons “at essentially the same
time as it communicates its denial” so as to not impair either the applicant’s decision
to file suit or the court’s subsequent review, or to allow the locality to “sandbag” the
applicant with post hoc rationalizations only after suit has been filed. Id. The Court
did not define what it meant by “essentially the same time,” but in that case, the
Court held that the City of Roswell violated the TCA’s writing requirement because
the twenty-six days it took to provide reasons after the City provided the written
denial letter was too long a delay to meet the “essentially contemporaneous”
requirement. Id. at 818.
The Supreme Court also recognized that this timing requirement necessarily
intersects with the thirty-day clock in § 332(c)(7)(B)(v). Citing the Shot Clock Ruling,
it held that “[o]nly once the denial issued would the 30-day commencement-of-suitclock begin.” Id. at 817. As a recent case from this district explains, a court delineates
between oral and written denials for the purposes of the thirty-day clock for judicial
review. See Skyway Towers, LLC v. Lexington-Fayette Urban County Government, No.
5:15-cv-301-KKC, 2016 WL 817133, at * 5 (E.D. Ky. Feb. 29, 2016). Roswell requires
that the written reasons be issued at essentially the same time as the written denial,
not the oral denial. See Skyway Towers, LLC, 2016 WL 817133, at * 5. This is because
it is the written denial that triggers the thirty-day clock for judicial review.
With this background, the Court now turns to Applicants’ arguments.
Applicants first argue that the vote taken at the public hearing to deny the
application on January 14, 2016 constituted a “final action” under KRS 100.347(5),
which provides that a planning commission vote to approve or deny an application
constitutes a “final action” under Kentucky law. Because Applicants had thirty days
from that point to preserve their state law remedy, the Commission was required to
provide reasons for the denial as set out in Roswell. Because the Commission did not
provide written reasons contemporaneously with the “final action,” the argument
follows, the Commission’s delay and failure to act constituted a violation of the TCA’s
Applicants conflate the “in writing” timing requirement, the thirty-day
requirement for applicants to challenge any adverse “final action” or “failure to act”
by a locality, and what is required under Kentucky law. Applicants argue that
Roswell “recognizes the import of [state] statutory deadlines” when the Court cited
Bennett, 520 U.S. at 177–178, in defining “final action” under the TCA. (DE 18-1, at
p. 15). But nothing in Roswell indicates the Court recognized this broad import of
statutory definitions. Instead, the Court in Roswell relied upon the Administrative
Procedure Act’s finality requirement to define what the TCA itself did not define.
Roswell, 135 S. Ct. at 817 n.4; see Omnipoint Holdings, Inc. v. City of Cranston, 586
F.3d 38, 45-47 (2009) (1st Cir. 2009) (drawing upon the meaning of “final” agency
action under the APA in construing the TCA’s own finality requirement). Using this
definition, Roswell made clear that for the purposes of the TCA writing requirement,
it is the issuance of the written denial that constitutes the “final action” and which
triggers the thirty-day clock for judicial review. Roswell, 135 S. Ct. at 817, n.4 (“The
relevant ‘final action’ is the issuance of the written notice of denial, not the
subsequent issuance of reasons explaining the denial.”); Skyway Towers, LLC, 2016
WL 817133, at * 5.2
The relevant question for the writing requirement is not, as Applicants
suggest, influenced by whether § 332(c)(7)(B)(v) and other state jurisdictional
statutory provisions have been triggered. Deciding whether the Commission violated
the TCA’s writing requirement concerns a different analysis. The only relevant issue
for the purposes of analyzing whether the Commission violated § 332(c)(7)(B)(iii) is
whether the Commission provided its reasons for denying the application in writing
The Court recognizes the tension between KRS 100.347(5) and § 332(c)(7)(B)(v) insofar as Roswell indicates
that the thirty-day clock under § 332(c)(7)(B)(v) does not start until the conveyance of a written denial and KRS
100.347(5) starts the state law clock when the vote is taken to approve or disapprove the matter before the
administrative body. Perhaps this what Applicants mean when they state: “In Kentucky, KRS 100.347(5) and
KRS 100.987(4)(c) combine as to require prompt decisions in order for the locality to simultaneously comply
with state law, the Telecommunications Act of 1996 and with [State of Tennessee ex. rel. Wireless Income
Properties, LLC v. City of Chattanooga, et. al., 403 F.3d 392 (6th Cir. 2005], as well as Roswell.” (DE 18-1, p. 16).
However, nothing precludes Applicants from seeking a state remedy in state court for a violation of state law
and subsequently filing a federal action.
and did so “essentially contemporaneously” with the written denial. Roswell, 135 S.
Ct. at 818.
Applicants assert that the failure to issue a written denial of the wireless
facility within the thirty-day statutory appeal period prescribed by KRS 100.347(2)3
amounts to a “functional denial” of their application in violation of the TCA.
Defendants, again, do not directly respond to this argument.
In State of Tennessee ex. rel. Wireless Income Properties, LLC v. City of
Chattanooga, et. al., 403 F.3d 392 (6th Cir. 2005) (“Wireless”), Wireless Income
Properties, a telecommunications company, sued the City of Chattanooga under the
TCA after the city failed to issue permits for monopole communications towers. 403
F.3d at 393. Between the time that Wireless Income Properties filed its applications
for permits and the time it filed suit, the City placed a moratorium on the issuance of
permits while it revised local zoning ordinances. Id. The City of Chattanooga took no
action on the applications during this nine-month moratorium. Id. Instead, following
the passage of the amended zoning ordinances, the city called Wireless Income
Properties on the phone to inform it of the denial. Id. at 398. No written decision as
to the status of the permit application was provided by the city. Id.
In full, KRS 100.347(2) provides:
Any person or entity claiming to be injured or aggrieved by any final action of the planning
commission shall appeal from the final action to the Circuit Court of the county in which the
property, which is the subject of the commission’s action, lies. Such appeal shall be taken within
thirty (30) days after such action. Such action shall not include the commission’s
recommendations made to other governmental bodies. All final actions which have not been
appealed within thirty (30) days shall not be subject to judicial review. Provided, however, any
appeal of a planning commission action granting or denying a variance or conditional use permit
authorized by KRS 100.203(5) shall be taken pursuant to this subsection. In such case, the thirty
(30) day period for taking an appeal begins to run at the time the legislative body grants or
denies the map amendment for the same development. The planning commission shall be a party
in any such appeal filed in the Circuit Court.
The United States Court of Appeals for the Sixth Circuit found the City’s
informal denial of applications constituted violation of TCA’s writing requirement.
Id. at 398. Contrary to Applicants’ suggestion, however, the Sixth Circuit found that
the informal denial did not hinge upon the expiration of a state statute. Rather, the
court simply stated the City violated writing requirement of the TCA “for the simple
reason that no written documentation of the City’s decision was ever provided to
Wireless.” Id. at 398.
The same simple reason applied Wireless carries the day in the present case.
At a public hearing, the Commission voted 6-1 to deny Applicants’ Uniform
Application on January 14, 2016. On February 11, 2016, almost a month later, the
Commission approved the minutes of the hearing. Eleven days later, the Commission
sent Applicants a copy of the minutes in an email attachment, but the Commission
never issued a written denial or notice of denial of Applicants’ Uniform Application.
As of March 15, 2016, the date the administrative record was filed (DE 15), the record
does not contain any written correspondence from the Commission to Applicants
denying the application aside from the minutes. For this reason alone, the
Commission has failed to satisfy the TCA’s requirements under § 332(c)(7)(B)(iii).
The plain language of § 332(c)(7)(B)(iii) makes clear that any decision by a
locality “shall be in writing.” As discussed above, the Supreme Court in Roswell held
that a locality no longer had to provide the reasons for denial “in the same writing
that conveys the locality’s denial of an application,” Roswell, 135 S. Ct. at 815, but
that the locality must provide written reasons “at essentially the same time as it
communicates its denial.” Id. at 816. While it is true that “a locality may rely on
detailed meeting minutes” to provide its written reasons for denial, id. at 816, Roswell
does not imply that submitted minutes suffice as the written denial required by the
The timing requirement, moreover, was created to allow localities like the
Commission the opportunity to develop its reasons and to avoid the squeeze of
providing reasons for the denial at the exact same time that the locality made the
written denial. See Roswell, 135 S. Ct. at 816 (“We hasten to add that a locality cannot
stymie or burden the judicial review contemplated by the statute by delaying the
release of its reasons for a substantial time after it conveys its written denial.”)
(emphasis added). In this case, however, the analysis does not even get that far. Here,
there was never a written denial of Applicants’ Uniform Application. The timing
requirement created in Roswell presupposes the issuance of the written denial. It
does not excuse it entirely.
Therefore, as in Wireless,4 this Court finds that the Commission has violated
the substantive and procedural requirements of the TCA by failing to provide a
written denial of Applicants’ Uniform Application.
To be clear, Wireless’ citation to the three factor test espoused in New Par v. City of Saginaw, 301 F.3d 390,
394 (6th Cir. 2002), which has since been abrogated by the Supreme Court in Roswell, has no bearing on the
fundamental requirement under § 332(c)(7)(B)(iii) that a locality must at the least provide a written denial.
C. Counts II-IV: 47 U.S.C. § 332(c)(7)(B)(iii)-Substantial Evidence; 47 U.S.C. §
332(c)(7)(B)(i)(II)-Effective Prohibition; KRS 100.987(10) and KRS 100.347Denial in Violation of State Law)
Because the Court finds that the Commission has violated the TCA by failing
to provide a written denial of Applicants’ Uniform Application, the remaining
arguments need not be addressed. Applicants are, however, entitled to relief on the
remaining claims. The Commission’s entire response and motion for summary failed
to respond to and, for that matter, explicitly accepted most if not all of Applicants’
substantive TCA and Kentucky law claims. For this reason alone, Applicants are
entitled to summary judgment.
When a party completely ignores or fails to address an issue, a Court may be
justified in deeming an argument abandoned. The Sixth Circuit has made clear when
abandonment occurs and the consequences abandonment carries.
This Court’s jurisprudence on abandonment of claims is clear: a plaintiff
is deemed to have abandoned a claim when a plaintiff fails to address it
in response to a motion for summary judgment. See Hicks v. Concorde
Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (holding that a district
court properly declines to consider the merits of a claim when a plaintiff
fails to address it in a response to a motion for summary judgment);
Clark v. City of Dublin, 178 F. App’x 522, 524–25 (6th Cir. 2006)
(recognizing that the failure to respond properly to motion for summary
judgment arguments constitutes abandonment of a claim); Conner v.
Hardee's Food Sys., 65 F. App’x 19, 24–25 (6th Cir. 2003); see also
Colston v. Cleveland Pub. Library, No. 1:12–CV–204, 2012 WL 3309663,
at *2 n. 2 (N.D. Ohio Aug.13, 2013) (deeming a claim abandoned and
granting summary judgment when a plaintiff “did not respond or even
mention [the] claim in her opposition to Defendants' motions for
Brown v. VHS of Mich., Inc., 545 Fed. App’x. 368, 372 (6th Cir. Oct. 10, 2013). The
Eastern District of Kentucky has followed this approach. See Smith v. Flinkfelt, No.
13-CV-02, 2014 WL 1331182, at *4 (E.D. Ky. Mar. 31, 2014) (collecting cases).
Applicants’ motion for summary judgement is more than thirty-five pages in
length and includes a thorough discussion of the reasons why they are entitled to
summary judgment. The Commission’s own motion for summary judgment is eight
pages in length and discusses its sole theory for why it is entitled to summary
judgment. The Commission does not directly respond to any of Applicants’
substantive claims. In fact, the Commission acknowledges its refusal to respond in
its motion for summary judgment. In addressing its argument that the December
22nd amendment to Applicants’ Uniform Application constituted a new application,
the Commission stated:
As argued herein, the seminal factual issue before this Court is the date
upon which the ‘Uniform Application’ was filed. If this Court accepts
Applicants’ position that the filing date is October 1, 2015,
Applicants’ arguments are well taken. Alternatively, if this Court
determines that the filing date is the date of the Amended Uniform
Application of December 22, 2015, Applicants’ Motion for Summary
Judgment should fail.
(DE 21-1) (emphasis added).
Having disposed of the single issue the Commission brings to this Court, what
remains is not only a failure to respond to Applicants’ arguments, but affirmative
approval of their position. The Court therefore concludes that the Commission has
abandoned these claims and grants Applicants’ motion for summary judgment on
The TCA does not state the appropriate remedy for violations of §
332(c)(7)(B)(iii). The Sixth Circuit has repeatedly concluded that “where the
defendant denied a permit application, and that denial violated the TCA's ‘in writing’
and ‘substantial evidence’ requirements, the proper remedy is injunctive relief
compelling the defendant to issue the requested permit.” Wireless, 403 F.3d at 399;
Cellco Partnership, 553 F.Supp.2d at 853. Accordingly, the Court will issue an
injunction compelling the Commission to issue Applicants the permits necessary for
the construction of the proposed wireless facility.
For the foregoing reasons, the Court hereby ORDERS as follows:
1. Applicants, PI Telecom Infrastructure V, LLC, Cellco Partnership d/b/a
Verizon Wireless, and Albert Burke’s Motion for Summary Judgment
(DE 18) is GRANTED.
2. Defendant Georgetown-Scott County Planning Commission’s Motion for
Summary Judgment (DE 21) is DENIED.
3. Defendant Georgetown-Scott County Planning Commission is hereby
ORDERED to provide any and all permits necessary for the
construction of the proposed wireless facility.
Dated February 10, 2017
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