Land use decision making in Oregon is highly structured; many complain that the formal structure delays increases the cost of decision-making. State law has long mandated that the approval or denial of a land use application must be in writing. All such written decisions must include written findings of fact, be based on consideration of the applicable standards and criteria, and be supported by substantial evidence in the record. All these requirements find their roots in typical state or federal administrative procedures act. Failure to comply with these requirements provides a basis for remand of a decision for reconsideration. This obligation applies to all local governments regardless of population or the number or qualification of local planning staff, from the City of Brooks to Wheeler County. Although these requirements may make land use decision-making more expensive and time-consuming for those who seek approvals, cases arise every now and again that cause Oregon to appreciate its state land use system. T-Mobile South, LLC v. City of Roswell, Georgia, currently pending review before the U.S. Supreme Court, is such a case.
T-mobile South, LLC (T-mobile) submitted an application to construct a 108–foot cell tower resembling a man-made tree in Roswell, Georgia. The location of the site, though planned inside a vacant lot, would be in an area zoned for single-family residences within a well-established residential neighborhood. Following an outpouring of public opposition to the tower, Roswell's Planning and Zoning Division recommended that the Mayor and city council, which ultimately approve applications after a public hearing, impose certain conditions before approving the application. Specifically, the Planning and Zoning Division recommended that T-Mobile should relocate the site to another part of the property, erect a fence around the tower, and plant pine trees to shield it from view of area residents. After a two-hour public hearing, city council members voted to deny the application.
Two days later, Roswell sent T-Mobile a letter notifying the company that the application was denied, without further elaboration, and referred the company to the minutes of the public hearing. T-Mobile sued Roswell and claimed that the city had not provided substantial evidence that would support a denial of the application. T-Mobile also argued that, by prohibiting T-Mobile from building the structure, Roswell violated the Telecommunications Act of 1996 (TCA). The TCA provides that a state or local government's denial of "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.”
The district court did not rule on the substantial evidence question and instead held that Roswell had not met the “in writing” component of the TCA, which required the government to state the reason(s) for denying an application. The district court ordered Roswell to grant the permit, and Roswell appealed. The U.S. Court of Appeals for the Eleventh Circuit held that Roswell had met the “in writing” requirement by issuing a written denial and referring to the minutes of the hearing for the reasoning. The U.S. Supreme Court granted review, briefs have been filed and oral argument is scheduled for November.
T-Mobile has argued that the “in writing” requirement requires an explanation for the decision considering the approval criteria. It claims that by not requiring such analysis, applicants will have no other choice but to seek judicial review of decisions to determine the reasons for denial, significantly increasing the costs of providing communications services. Roswell, along with other amici, representing state and local government groups and the American Planning Association (APA), argued that requiring a detailed analysis for the decision would impose stringent procedural requirements that (1) is not borne out in the plain language of the TCA and (2) imposes significant additional costs on and unreasonably burden the ability of local governments to carry out land use regulation. According to the APA amicus brief, although zoning and land use personnel is not a specifically identified category, census data from 2012 reveals that 71% of municipalities do not have a single full-time paid employee to handle “other government administration,” including land use, and others in that group 33% have no more than one part-time paid employee. Finally, the amici argue that if the City erred in not providing a more detailed explanation of its decision, the remedy was a remand and not a reversal giving approval for tower siting without any local government review.
Even though Oregon has been requiring an explanation for individualized land use decisions for years, that would be a big step for the rest of the country. Even the APA hopes that the US Supreme Court’s analysis sticks with the more banal principles of statutory construction. After all, other parts to the TCA specifically require a more detailed writing including decisions by the Federal Communications Commissions that must “state that basis for its approval or denial.” Such differences in language choices are typically deemed deliberate. The Court should not conclude that local government planners are not equipped to handle the burdens imposed by explaining a decision in writing. Certainly, if the Court were to survey whether local government staffers make written decisions analyzing the criteria based on the facts, Oregon’s local governments, even with a skeleton crew, have been doing this for years, for which the State and its citizens may be truly grateful.
In February, President Obama signed into law HR 3630, also known as the “Middle Class Tax Relief and Job Creation Act of 2012,” which extended unemployment benefits and payroll tax deductions. Congress stuffed the bill with several additional provisions, including one that affects local government decisions regarding the siting of wireless facilities.
The legislation expressly requires that a local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station, so long as the modification does not substantially change the physical dimension of the tower or base station. This approval must be granted regardless of provisions in the Telecommunications Act of 1996 (Section 704) or any other provision of law. An “eligible facilities request” is any modification request that involves the collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.
City of Arlington, Texas v. Federal Communications Commission, ___ F3d ___, 2012 WL 171473 (5th Cir.) involved certain new commission rules to assure timely, reasoned local decisions on the grant or denial of wireless communication facilities. The declaratory ruling was the result of a petition from a wireless trade association to clarify ambiguities in the law under the Telecommunications Act (“TCA”). Petitioner sought (1) time limits for acting on wireless applications for land use approval, (2) to deem the applications approved if not acted upon within a certain time, (3) a determination that if one provider already in the area, that other providers could also take advantage of the TCA to locate in the same jurisdiction and (4) the prohibition in the use of a variance to allow for the siting of a wireless facility. The FCC granted the petition in part.
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