January 14, 2015 — The U.S. Supreme Court ruled last week in favor of the wireless industry’s right to know why an application to build wireless facilities has been denied. The ruling came in the case known as T-Mobile South v. City of Roswell, Georgia, where the carrier sued the city for violating guarantees in the Telecom Act of 1996 that reasons for the denial of a wireless site must be provided to a carrier in writing.
On April 14, 2010, the city’s planning and zoning division sent a letter to T-Mobile, which advised the carrier an application had been denied, offering only access to the public hearing minutes for reasons why the denial occurred.
“PCIA applauds the Supreme Court for recognizing that the City of Roswell had not complied with its statutory obligation to inform PCIA member T-Mobile of its rationale for denying a siting application. Today’s decision vindicates PCIA’s conviction that wireless providers must be informed in a clear-cut and timely manner when siting applications are turned down,” Jonathan Adelstein, president and CEO of PCIA – The Wireless Infrastructure Association, said in a prepared release.
It took 26 days for Roswell’s city council to provide T-Mobile with the reasons for the denial, which included aesthetic incompatibility and unnecessary technology.
“In the opinion delivered by Justice Sotomayor, the court found that the city council provided the reasons for the denial with sufficient clarity, but failed to provide those reasons in a timely manner, which violated the Act,” wrote Allyssia Bryant, associate, Keller and Heckman, in the firm’s Telecom Business Alert.
The Supreme Court decision reversed and remanded the U.S. Court of Appeals for the Eleventh Circuit, which held that the city’s denial letter, public hearing minutes, and transcript satisfied the 1996 Act’s “in writing” requirement.
The U.S. Supreme Court has agreed to hear the case of T-Mobile v. City of Roswell, Georgia, which could shape future zoning decisions where the state or local government denies a tower. Under scrutiny is a passage from the Telecommunications Act of 1996 that says a zoning denial “shall be in writing and supported by substantial evidence contained in a written record.”
T-Mobile claims that the City of Roswell denied its application for a tower without giving a written explanation stating the reasons why and, therefore, is in violation of the Telecom Act of 1996.
“The question presented is whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy this statutory ‘in writing’ requirement,” according to T-Mobile’s pleading.
There is a clear split of opinion in the federal courts on the issue. While four Circuit Courts have required a written explanation for the denial, two Circuit Courts do not, according to Bill Sill, partner, Wilkinson Barker Knauer.
“A decision by the Supreme Court that reverses the 11th Circuit, would hold local jurisdictions more accountable for their decisions by requiring the local jurisdiction to provide the rationale for its decision in writing,” he said. “On the other hand, if the Supreme Court affirmed the 11th Circuit’s approach, localities would have unchecked power to deny construction permits and could leave aggrieved tower companies and carriers without a meaningful ability to appeal a denial.” The Supreme Court will hear the case in the Fall and is not expected to issue a decision, at the earliest, until late this year.
The 11th Circuit Court U.S. Court of Appeals ruled that the city satisfied the “in writing” requirement even though the letter itself did not give reasons for the denial.
“The letter informed T-Mobile that it could obtain the minutes of the City Council’s hearing in which the request was denied, and those minutes recounted the reasons for the denial,” the court wrote in its decision. “T-Mobile also had access to the transcript of the hearing, which gave an even more detailed written account of the City Council’s decision.”
On Feb. 2, 2010, T-Mobile South applied to construct a 108-foot-tall cell tower on 2.8 acres of vacant property zoned single-family residential, using a monopine design. The City’s Planning and Zoning Division concluded that T-Mobile’s application met all ordinance requirements for the construction of a cell tower and recommended it with several conditions.
The City Council considered the application at a public hearing, which lasted more than two hours. The 108-page transcript includes opinions both in favor of and opposed to the tower, but provided no insight into the City Council’s thinking in denying the application, according to T-Mobile.
“No one ever identified which of the various concerns expressed at the meeting and in support of the motion [to deny the tower application] constituted the City’s official reasons for denying the permit,” T-Mobile wrote in its petition before the court.
Rep. Don Parsons (R-Marietta) got his wish. As the author of the Mobile Broadband Infrastructure Leads to Development (BILD) Act, he had vowed to continue working for the bill’s passage after it failed to come up for a vote last year. The bill, which is designed to expedite the deployment of wireless infrastructure, has passed overwhelmingly in both houses and is awaiting the Governor’s signature.
The Georgia Municipal Association originally opposed the measure, saying that it restricted local zoning authority, which kept it from coming up for a vote in the last session. A compromise concerning local municipalities’ authority helped the measure pass.
The final legislation’s language reads, “Applications for collocation or modification of a wireless facility … shall be reviewed for conformance with applicable site plan and building-permit requirements, including zoning and land-use conformity, but shall not otherwise be subject to the issuance of additional zoning, land use, or special use permit approvals.”
The bill makes it possible for previously approved wireless support structures to be modified or accept collocations without additional zoning review beyond what is required for the issuance of building or electrical permits if the modifications do not increase the height or width of the tower, increase the dimensions of the equipment compound or exceed weight limits of the structure.