U.S. Supreme Court Clarifies How and When Local Agencies Must Communicate Denials of Cell Tower Applications
by Derek P. Cole on January 26, 2015
posted in Recent Court Decisions, Zoning,
A cellular carrier applies for entitlements to erect a cell tower that a city council finds objectionable. The council wishes to deny the application. How and when must the council communicate the reasons for the denial to the applicant?
In T-Mobile South, LLC v. City of Roswell, the United States Supreme Court answered these questions. It confirmed that denials of cell tower applications must be in writing, but not necessarily in a specific format, such as a formal statement of denial. The Court also clarified that the denial must be communicated about the same time as the denial is made.
Facts of the Case
T-Mobile sought approval to construct a cellular tower from the City of Roswell, Georgia. It proposed to erect a cellular tower that resembled a pine tree. A city planning body found that the tower would comply with a local ordinance requiring the tower to be compatible with surrounding structures and for its cellular apparatuses to be camouflaged. But the City Council found otherwise, unanimously denying the application after receiving significant public opposition.
To reflect its decision, the city sent T-Mobile a terse statement indicating the denial. The statement did not specify the reasons for the denial but indicated T-Mobile could request the city council minutes from the city clerk. The minutes did contain a detailed summary of the proceedings that led to the denial, but were not made available until 26 days after the meeting in which the denial was made. This would become a significant factor in the outcome of the case as, by law, T-Mobile had only 30 days from the date of the denial to seek relief in court.
The Court’s Holdings
The case involved the interpretation of the Telecommunications Act of 1996. The relevant part of this statute provides that “[a]ny decision by a … local government … 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.”
The substantiality of the evidence in support of city council decision was not before the Court. Instead, the Court considered whether the city had properly communicated the denial to T-Mobile. The Court held that city had not.
- The Court first held that a written denial of the cell tower application was required, but that the denial was not required to be provided in any particular format. The Court thus concluded that the inclusion of Roswell’s reasons for the denial in its city council minutes was an acceptable form of written communication of the denial.
- The Court also held, however, that the written expression of the denial—whatever its form—must be communicated “at essentially the same time” as the denial is made. The Court noted that the Telecommunications Act required appeals of local agency denials to be filed within 30 days of the adverse decisions. This was a problem since Roswell’s minutes were not provided until 26 days after the denial, depriving T-Mobile of the reasonable time it needed to consider the merits of an appeal in light of the expressed reasons for the denial.
How Local Agencies Should Respond
Although the Court held that a formal letter of denial is not required, this should not stop agencies from using formal means of conveying their decisions. The Court emphasized that the purpose for a written statement of reasons is to enable courts to engage in meaningful judicial review. Because agency decisions must be supported by substantial evidence, the Court made clear that agencies still must document the link between the evidence and the reasons for denials.
In the author’s view, a formal, well-developed letter is the best vehicle for providing this link. The exercise of drafting the letter forces the agency to expressly articulate its reasoning. Motions for denial of the application should, however, be sufficiently detailed to allow agency staff or counsel to draft an appropriate letter.
Agencies should also take care to ensure the letter is sent almost immediately after the hearing. The Court indicated that written communications of denial should be sent “at essentially the same time” as the denial is made. It seems like that a letter sent within a few days of a public meeting probably is “essentially” sent at “the same time,” but beyond this time range, it is unclear at which point a written statement becomes untimely.
Using minutes to convey the reasons for the denial—despite the Court’s validation of the practice in the abstract—is not a viable option. Most agencies do not consider meeting minutes until subsequent meetings which can sometimes occur two, three, or even four weeks later. It is difficult to envision any scenario in which an agency could approve its minutes in sufficient time to allow an aggrieved cell tower applicant to meaningfully consider the merits of an appeal within the 30 days it has to seek judicial review.
