SBA Towers VI, LLC v. City of Coshocton Board of Zoning Appeals
Filing
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OPINION and ORDER granting 11 Motion for Discovery: Insofar as no discovery is permissible to support the Board's defense that substantial evidence supports its decision to deny SBA a zoning permit to construct a telecommunications tower. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/10/2015. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SBA TOWERS VI, LLC,
:
Plaintiff,
:
:
v.
CITY OF COSHOCTON BOARD OF
ZONING APPEALS,
Defendant.
Civil Action 2:15-cv-2406
Judge Edmund A. Sargus, Jr.
:
Magistrate Judge Elizabeth P. Deavers
:
OPINION AND ORDER
In this case, Plaintiff, SBA Towers VI, LLC (“SBA”) maintains that Defendant, City of
Coshocton, Board of Zoning Appeals (“Board”) violated two provisions of the Telecommunications
Act, (“TCA”) 47 U.S.C. § 332(c)(7)(B)(iii), related to the claim that the Board failed to support the
decision to deny SBA’s application for a permit to construct a cellular tower in writing, supported
by substantial evidence, and § 3332(c)(7)(B)(i)(II), for purportedly prohibiting the provision of
personal wireless services. As relevant here, the parties disagree as to the proper scope of
discovery under § 3332(c)(7)(B)(iii). SBA contends that no discovery is warranted as a matter of
law. The Board counters that the administrative record in this case is scant such that it must be
permitted to engage in discovery because it cannot adequately defend its position. This matter is
before the Court for consideration of Plaintiff’s Motion regarding the availability discovery for
SBA’s claim under § 3332(c)(7)(B)(iii). (ECF No. 11.) For the reasons that follow, SBA’s Motion
is GRANTED insofar as no discovery is permissible to support the Board’s defense that substantial
evidence supports its decision to deny SBA a zoning permit to construct a telecommunications
tower.
I.
SBA desires to construct a telecommunications tower and related facility in an area that has
significant gaps in wireless telecommunications coverage offered by Verizon, a national wireless
carrier. SBA identified a site at 1205 Cambridge Road, Coshocton, Ohio that would address the
need for improved wireless coverage. The City of Coshocton School District owns the real estate
identified as the site and leased it to SBA. The lease expressly permits the construction of a
telecommunications tower and related facility. (Compl., at ¶¶ 6-8.)
SBA submitted a zoning permit application to the Board regarding its proposed
telecommunications tower and facility on March 26, 2015. On May 6, 2015, the Board met to
consider SBA’s application. By letter dated May 13, 2015, the Board notified SBA that it had
denied its zoning application. In the notification letter, the Board indicated that all members voted
against the application and that “[s]urrounding home owners objected to a cell tower in residential
area.” (Compl, ¶¶ 24-26, Exh. B.)
II.
As relevant to the case at this juncture, SBA contends that the Board violated 47 U.S.C. §
332(c)(7)(B)(iii) by failing to support its decision to deny SBA’s zoning permit with substantial
evidence contained in a written record. The Board indicates that the administrative record in this
case consists only of the Board’s denial letter, its May 5, 2015 Meeting Minutes, and two letters
from residents opposing SBA’s application for a zoning permit. (Def’s Mem. in Opp., at 2 (ECF
No. 14.) The Board indicates that the meeting was not transcribed, recorded or videotaped but that
the Minutes reveal that the Board members had a “lengthy discussion” regarding SBA’s zoning
permit and that the Board “voted on the appeal.” (Id.) The Board therefore posits that it is unclear
considering the administrative record alone what the members actually discussed and relied upon in
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their decision to deny the zoning permit. The Board therefore seeks discovery to establish that it
relied on substantial evidence to deny SBA’s application.
SBA counters that its claim under § 332(c)(7)(B)(iii) may be summarily adjudicated based
on the administrative record as it stands at the time the Board rendered its decision. It maintains
that the Board either has a written record that substantially supports its decision or it does not. SBA
contends that the TCA does not contemplate discovery for a claim under § 332(c)(7)(B)(iii). The
Court agrees.
The Board relies on Cincinnati Bell Wireless LLC v. City of Middletown, Case No. 1:07-cv022, 2008 WL 173296, *8 (S.D. Ohio April 10, 2008) in support of its assertion that discovery is
permissible in determining whether a defendant violated § 332(c)(7)(B)(iii). In Cincinnati Bell, the
Court considered the “totality of the record,” including testimony presented at the zoning meeting
and the audio-recorded transcript, in determining whether the defendant violated §
332(c)(7)(B)(iii). This case, however, does not support the conclusion the Board draws. It does not
suggest that a defendant is entitled to discovery in order to create the record it seeks to defend after
it has been sued under § 332(c)(7)(B)(iii).
The Board’s reliance on Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment, 21 F. Supp. 3d
381, 388 (D. N.J. 2014) is similarly unavailing. In this procedurally complex case, the court
initially denied summary judgment on the § 332(c)(7)(B)(iii) claim and did permit discovery
outside of the administrative record. The court, however, arrived at this result based on its
conclusion that resolution of the issue under plaintiff’s § 332(c)(7)(B)(iii) claim depended on
resolution of the same factual issues upon which the § 332(c)(7)(B)(i)(II) analysis required. Put
another way, the trial court found the two claims to be interrelated such that resolution of whether
reasonable alternatives were available depended on facts that would impact its analysis as to
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whether the board’s findings were supported by substantial evidence. The Court expressly
indicated that it “must examine the record as a whole to determine if there is substantial evidence to
support the challenged decision. . . . The Court may not weigh the evidence contained in the record
or substitute its own conclusions for those of the Board. [The Court] condider[s] the record created
before the Board. . . .” Id. at 397-98.
Other cases make clear that the Court is limited to the administrative record as it was before
the zoning board:
The “substantial evidence” standard articulated in 47 U.S.C. § 332(7) “is the traditional
standard employed by the courts for review of agency action.” Laurence Wolf Capital
Management Trust v. City of Ferndale, 61 F. App’x 204, 213 (6th Cir. April 10, 2003).
Substantial evidence “is more than a scintilla” and “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” New Par [v. City
of Saginaw, 301 F.3d 390, 396 (6th Cir. 2002)] (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). This standard is “highly deferential” to the decisions rendered
by local planning and zoning authorities. Second Generation Properties, L.P. v. Town
of Pelham, 313 F.3d 620, 627 (1st Cir. 2002). Moreover, when evaluating whether the
ZBA’s decision is supported by substantial evidence, the Court may consider only that
evidence contained in the administrative record which was presented to the ZBA. Id.
at 628.
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) (emphasis added); T-Mobile Central, LLC, v. Charter Township of West
Bloomfield, 691 F.3d 794, 798 (6th Cir. 2012) (noting that, in conducting a substantial evidence
review, courts “look to whether the agency explained any credibility judgments it made and
whether it gave reasons for crediting one piece of evidence over another. . . .”); Cincinnati Bell
Wireless, 2008 WL 1732967 at *6 (same); Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment, No.
14-5954, 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 subject of deferential substantial evidence review.”). Accordingly, the Board is not
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entitled to discovery.
III.
For the foregoing reasons, the Board’s request for discovery on SBA’s claim under §
332(c)(7)(B)(iii) is denied. SBA’s Motion (ECF No. 11) is GRANTED insofar as no discovery is
permissible to support the Board’s defense that substantial evidence supports its decision to deny
SBA a zoning permit to construct a telecommunications tower.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Opinion and Order, that
party may, within fourteen (14) days, file and serve on all parties objections specifically designating
this Opinion and Order and the part in question, as well as the basis for objection. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days
after being served with a copy. Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th
Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the issues of
contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).
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IT IS SO ORDERED.
DATE: November 10, 2015
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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