Cell Tower Siting “In Writing” Requirement: Not What it Seems?
In T-Mobile South v. City of Roswell the Supreme Court will decide whether a letter denying a cell tower construction application that doesn’t explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) “in writing” requirement.
T-Mobile applied to construct a 108-foot cell tower in an area zoned single-family residential. The City of Roswell’s ordinance only allowed “alternative tower structures” in such a zone that were compatible with “the natural setting and surrounding structures.” T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree that would be about 25-feet taller than the pine trees surrounding it.
After a hearing, where city council members stated various reasons for why they were going to vote against the application, Roswell sent T-Mobile a brief letter saying the application was denied and that T-Mobile could obtain hearing minutes from the city clerk.
The TCA requires that a state or local government's decision denying a cell tower construction permit be “in writing.” The district court and other circuit courts have held that the TCA requires a written decision and a written record that explain why the city council’s majority rejected the application.
The Eleventh Circuit disagreed relying on a plain reading of the statute. The TCA doesn’t say that “the decision [must] be ‘in a separate writing’ or in a ‘writing separate from the transcript of the hearing and the minutes of the meeting in which the hearing was held’ or ‘in a single writing that itself contains all of the grounds and explanations for the decision.’”
So, you might ask…why would the Court that decided whether the Affordable Care Act was constitutional resolve a seemingly trifling issue like what “in writing” means? Well, the majority of the cases the Supreme Court accepts involve circuit splits where federal courts have ruled differently on the exact same issue. Circuit splits arise in cases important and mundane and involve issues big and small.
And the impact of T-Mobile South v. City of Roswell on local governments should not necessarily be underestimated. First, the remedy for failing to meet the “in writing” requirement isn’t a do over—it is a granting of the permit. Second, meeting the “in writing” requirement as T-Mobile would have it might be harder than you think. Particularly in a small town, the person preparing the denial likely will not be a sophisticated telecom lawyer who understands the intricacies of the Telecommunications Act.
The State and Local Legal Center will file an amicus brief in this case supporting Roswell.
About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.