The Sixth Circuit has addressed the “in writing” requirement: to satisfy the TCA’s “in writing” requirement, a local government’s denial must “(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir. 2002). In this case, there were two applications to the board; in the first, the Zoning Board circled “Relief Denied” on the front of [the] Application, explaining in full that its decision was “due to noncompliance of property, multiple uses on site,” and in the second, the Zoning Board denied without prejudice “based on ongoing litigations [sic] and negotiations with an alternate site.” Frankly none of these reasons are explained with any degree of specificity sufficient to allow someone to understand what was really going on. And the second denial, based on “ongoing litigation,” seems specious.
By the way, this observation that the board does not act on pending applications when there is litigation ongoing is referenced throughout the opinion. The trial court notes that there was no documentation presented concerning this “policy” of the board. Probably what was going on here however is a fairly well documented Tennessee procedure relating to the common law writ of certiorari. Once an appeal has been taken from a decision of a lower tribunal, and the writ of certiorari has issued, under Tennessee law, there should be no further proceedings before the administrative tribunal. As Justice Koch explained in Stone Man v Rutherford County Regional Planning Commission, “proceeding simultaneously in both the administrative and judicial forums on the same matter is fraught with the dangers of inconsistency and duplication of effort.” So the zoning board policy of not considering an application once litigation has begun is rooted in a fundamental Tennessee jurisprudential rule. However, that Tennessee rule would seemingly have nothing to do with federal litigation under the FTCA.
In any event, the court concludes that the written decision lacks sufficient specificity under the terms of the FTCA. Furthermore, while the county relied on the meeting minutes and hearing transcripts, neither of those were separate from the record. As the court indicated, “the hearing transcripts and meeting minutes are not sufficiently separate because the Court cannot discern after studying them the arguments the Zoning Board and Planning Commission relied on as opposed to the arguments those bodies found unavailing.”
Furthermore, there is no substantial evidence presented to the board. “The legal problem for Wilson County—and the reason the stated worries about the tower’s impact on the [nearby] school are not substantial evidence that can support the county’s denials — is that health concerns are an impermissible ground of denial under the FTCA. See 47 U.S.C. § 332(c)(7)(B)(iv) (No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.)”
The other reasons to deny the application relied on nothing more than conjecture and speculation. “While the Sixth Circuit has not said that lay opinion evidence may never satisfy the substantial-evidence requirement, it has rejected similar lay-opinion testimony at least twice.” The board did hear evidence regarding the non-conforming nature of the use on the property. This issue seems a bit murky: the court was not very specific about the exact nature of the non-conforming aspect of the property. However, evidently the difficulty could be resolved by a simple subdivision, which is been denied by the planning commission even though technically compliant with the local regulations. The court had little sympathy for the county’s argument that the subdivision was turned down because the cell tower use had not yet been approved by the zoning board. This amounted to a Catch-22 in the court found this again a violation of the act.
Regarding the alleged prohibition of cell coverage, the court found that the applicant had demonstrated that the area in question had four cell coverage and rejected lay opinion tending to prove the opposite. Again, without some expertise, lay testimony about matters of engineering expertise is unavailing in state or federal court.
Finally, with regard to unreasonable delay, the FCC has previously ruled that in an application such as this one hundred and 50 days is a reasonable time frame within which to make a decision. “In addition to the fact that the county’s pending litigation rationale finds no support in the FTCA, it also finds no support in Wilson
County’s own policies or regulations, as discussed above. As a result, the Court grants summary judgment to ATI on its claim that Wilson County’s delays in processing ATI’s applications violate the FTCA.”
The court ordered Wilson County to immediately grant the application and all approvals necessary to allow ATI to construct the proposed tower. The county was also ordered to cease all attempts to prevent ATI from subdividing the proposed site.
Finally, the court considered whether the zoning board’s actions were within its authority under Tennessee state law and concluded that they were not. The issue was whether the zoning board lacked authority under Tennessee law to deny or defer the applications due to pending litigation. The applications seemed clearly to meet the requirements of Wilson County’s zoning ordinance and the county’s practice of not considering matters subject to pending litigation found no support in the zoning ordinance. The court concluded that the Zoning Board and Planning Commission exceeded their authority because they did more than simply determine whether the requested use complied with Wilson County’s zoning laws. However, as I mentioned above, this doctrine concerning pending litigation is not a local matter; it is the policy of the state to ensure judicial economy by not having both administrative and judicial proceedings concerning the same subject matter continuing at the same time. Under the common law writ of certiorari here in Tennessee, most likely a local court would be sympathetic with the zoning board’s position. However, it certainly should be emphatically noted that clearly these applications were denied based on something other than the existing zoning regulations. It would make any difference than that the zoning board did not consider the second application because of the pending litigation doctrine; the fact of the matter is that the applications met the requirements of the local regulations, should been granted, and the District Court here clearly overturned the zoning board decision in a manner which was consistent not only with the FTCA but also with Tennessee state law. To put it another way, the zoning board and the planning commission here both acted arbitrarily and capriciously in denying these applications. Under Tennessee state law, there decisions it should have been reversed regardless of the pending legislation doctrine.
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