Tuesday, January 20, 2015

Local Zoning Boards and the Federal Telecommunications Act

Last week, the United States Supreme Court decided an interesting land use planning case involving the Federal Telecommunications Act of 1996. In T-Mobile South, LLC v. City of Roswell (United States Supreme Court, January 14, 2015), the court concluded that while the Act requires reasons for the decision, those reasons do not have to be found at any particular location in the record whether it be in the minutes, the decision itself, or some other document; however, more critically, the reasons must be given at the time of the decision or roughly contemporaneously with it.  In the case pending before the Supreme Court, the zoning board had delayed 26 days before releasing the reasons, and the court found this to be a violation of the statute.

This decision appears to overrule one aspect of the leading Sixth Circuit case, New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir. 2002), which required that the “in writing” requirement must be separate from the written record. However, the Sixth Circuit also required that the reasons for the denial be given, that the denial be supported by material evidence, and that there not be any unreasonable delay in the decision, all of which are also mandated by the Supreme Court.

With regard to the timing of the decision, the court noted that

If a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.

It would appear therefore that the local zoning board need only delay its actual decision until the reasons are ready; it can then issue the decision and the reasons underlying the decision at the same time.

I have previously mentioned that in Tennessee, it seemed to me that the board could take a vote on the decision and then at the next meeting adopt findings of fact to support the decision. This case calls that idea into question; however, since the 90 to 150 day window exists, in the case of telecommunications applications, the board should simply defer action, request reasons to potentially grant or deny the application at the next meeting from the staff, and then at the next meeting adopt those reasons as the basis of a decision to be made at the later time. In fact, it might be best to ask for reasons supporting grant or denial.

The court notes that it is important to have the reasons for the decision in order to facilitate proper judicial review. Unfortunately, the Tennessee courts have been reluctant to impose an absolute requirement for a statement of reasons supporting zoning board decisions. In the well-known case, Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App. 1999), the court accepted a very brief form with the entry “Relief Denied,” circled and signed by the board Secretary as sufficient evidence of the decision. Certainly there was no reasoning behind the decision. The Tennessee courts need to follow the federal courts and require fact findings support decisions of these local administrative bodies. Otherwise it’s difficult not only to facilitate appellate review, but even decide whether to take an appeal. If you don’t know the basis upon which the board made the decision, it’s difficult to decide whether an appeal might be successful.

In any event, this new case offers some additional insight into the way the US Supreme Court views this local zoning process, and certainly the burden on the local zoning board seems to be a little less than what we previously thought.