Supreme Court Weighs in On Tower Denials

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The case between T-Mobile and the city of Roswell, Georgia, has gained a lot of attention as T-Mobile took the town to court after they denied a tower proposal and provided no specific explanation. The town presented T-Mobile with the minutes from the meeting where the tower was denied. The minutes cited a number of potential reasons, but T-Mobile wasn’t given the official reason for the denial of their permit. Marcia Coyle of the Supreme Court Brief explained, “[On Monday] the high court examined a provision in the federal Telecommunications Act titled ‘Preservation of Local Zoning Authority.’ The provision requires that any denial of the construction or modification of a wireless service facility ‘shall be in writing and supported by substantial evidence contained in the record.’ Roswell has 32 towers within its 42 square miles, 17 of them used by T-Mobile.”

T-Mobile was denied by the town when it proposed to build another tower that would be 108 feet high, taller than any of the surrounding structures. Representing T-Mobile, Jeffrey Fisher of Stanford Law School told the justices that Roswell violated the “in writing” requirement when it sent his client a notice of the denial and referred it to the city’s written minutes and transcript of the council meeting. (Supreme Court Brief) Many of the justices listening to the case felt that it was unjust for local governments to deny these applications without a clear explanation.

At first, the justices seemed to be okay with the reasons being given in any form as long as they were written down and the company had time to appeal the decision. However, after much discussion it seemed that the lack of definite rules regarding the “written down” clause could cause more controversy. “Everyone loves cell phones, apparently. Nobody likes towers, apparently,” Justice Stephen Breyer said. “If we don’t have simplicity, we’ll have 2 million different ways of going about this between different cities and counties.” (USA Today)

According to the Supreme Court Brief, “Representing Roswell, Richard Carothers of Carothers & Mitchell in Buford, Georgia., told the justices that federal appellate courts in the Fourth, Eighth and Eleventh circuits agree with Roswell that the law neither ‘explicitly nor implicitly’ requires that reasons be provided in the written denial itself as long as they are provided elsewhere in the written minutes or transcript. He said the 30 days for seeking judicial review of a denial should run from the approval of the council’s minutes.” Fisher commented that without knowing the official reason for denial, T-Mobile is unable to secure the expedited judicial review the law contemplates. “If the letter clearly directed the company to some other document and the document were contemporaneously available, that would be enough,” Fisher said.

While Carothers believes the letter informing T-Mobile that their project had been denied was an official notification, Justice Breyer felt that the simplest solution was to write down the decision and provide reasons. Justice Elena Kagan also suggested a simple rule: Write the decision with a sentence or two explaining why so that it’s not required for every judge to look through the minutes and transcript to decide if the reason is clear enough. Carothers argued that waiting for the approved minutes would mean a decision could not be issued for several months.

“Then the challenge is going to be [that] the statements in the letter do not accurately reflect the minutes; they misstate the minutes; they mischaracterize the minutes,” he said. “In fact, they’re a post hoc rationalization of what was in the minutes. We are going to have another line of inquiry and challenge.” (Supreme Court Brief)

According to Joseph Palmore, co-chairman of Morrison & Foerster’s Supreme Court and appellate practice, said the outcome of the case was too difficult to predict. “There seemed to be competing concerns during the arguments,” he said.

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