Denying Cell Tower Siting Applications Post T-Mobile v. City of Roswell

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1 Denying Cell Tower Siting Applications Post T-Mobile v. City of Roswell Tim Lay February 13, Eye Street, NW, Suite 700 Washington, DC The Statute Statute provides: Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. 47 U.S.C. 332(c)(7)(B)(iii). Circuit split: Some say simple denial is sufficient; others say reasons must be included in a locality s denial decision. 1

2 T-Mobile s Tower Application T-Mobile applied to construct a 108' cell tower in Roswell. Application was denied at a public hearing. After public hearing, discussion by council members. Denied by motion. 3 The City s Denial Letter Please be advised the City of Roswell Mayor and City Council denied the request from T Mobile for a 108 mono-pine alternative tower structure during their April 12, 2010 hearing. The minutes from the aforementioned hearing may be obtained from the city clerk. Please contact Sue Creel or Betsy Branch at [phone number]. If you have any additional questions, please contact me at [phone number]. 4 2

3 District Court Decision Roswell did not issue a decision in writing because reasons were not set forth in denial letter. Court shouldn t have to wade through minutes or transcript to find reasons. Remedy: injunctive relief ordering grant of T- Mobile s application. 5 Court of Appeals Decision To the extent that a city s decision must contain reasons or explanations, those reasons can be in a different written document (meeting minutes, transcript) than the denial and to which the applicant has access. All written documents (denial document, minutes, transcript) should be considered collectively to determine if the decision is in writing. Reverse & remand to the district court to reach merits, 731 F.3d 1213 (11th Cir. 2013). 6 3

4 Supreme Court Review Localities must provide reasons for denying a wireless siting application to enable judicial review. Disagreeing with T-Mobile and agreeing with City and SLLC, holds that those reasons need not be in the same document as the written denial. BUT any other document (minutes, transcript) must be essentially contemporaneously available with the written denial letter. On that sole ground, reversed the 11th Circuit. 7 Next Steps for Roswell Remand to Eleventh Circuit. Harmless error (?). Likely subsequent remand to district court for determination on the merits. Court opinions cast doubt on whether district court s injunctive relief was proper. 8 4

5 What Roswell Means for Local Governments The reasons for a denial must be in writing. Can be a separate document from the actual denial (minutes, transcript). But those documents need to be available at about the same time as the denial. Lesson: Either (1) wait to issue denial until minutes/transcript are available; or (2) draft a written denial decision setting forth reasons. 30-day judicial review period runs from denial. Full, written opinions are not required, but a written decision setting forth reasons (and also stating what was not considered) may be a good idea. 9 Resources Supreme Court decision, 574 U.S. (2015), available at /13-975_8n6a.pdf Briefs available at

6 Questions? Tim Lay Katie Mapes Jessica Bell (202)