*1 weight of declaration carry does may suggest Although the revision law. applica- an unreasonable against

caution limitations, the law

tion of the statute the maturi- before. When

remains as was is as- obligation an installment date of

ty of the mort- language from the

certainable instrument, runs from the the statute

gage payment last is due.

date when the arguments my opinion, respondent’s

In 541.03, subdivi- of section reading of a reasonable

sion contradict offend the understand-

statutory language, accept- that has been an

ing of the statute nearly law for rubric of Minnesota

ed nasty of nulli-

century, and risk the result important legal obli- a number of

fying

gations. TOWER, L.P., a Delaware

AMERICAN Respondent, partnership,

limited Minneapolis, Inc., a Delaware

APT Plaintiff,

corporation, GRANT, Appellant.

CITY OF

No. C1-00-786. Appeals of Minnesota.

Court

Dec. 2000. *2 Cleve,

Gary A. Van Mark D. Christo- Larkin, Hoffman, pherson, Daly & Lind- Ltd., MN, gren, Bloomington, respon- dent. Strommen, Cole, M.

James Karen R. Graven, Chtd., Kennedy Minneapolis, & MN, appellant. WILLIS, by

Considered and decided Presiding Judge, CRIPPEN and PETERSON, Judges.

OPINION WILLIS, Judge City appeals of Grant from the dis- granting summary judg- trict court’s order ment favor of American Tower. We affirm.

FACTS 31, 1999, Tower, August On company that telecommunica- constructs towers, tions submitted an ap whether the district court erred in its for a conditional-use City of Grant (CUP) plication Cooper by in Grant. the law. State to build tower permit French, later, No city’s month one Approximately applica- of material fact approved genuine issue exists planning commission “ ‘[wjhere the taken as a it to the council. record whole and forwarded tion *3 coun- a fact meeting, city 1999 the could not lead rational trier of to At its October ” DLH, nonmoving party.’ of American Tow- find for the consideration cil tabled (Minn. 2, 1999, Russ, 60, Inc. v. 566 69 application. On November N.W.2d er’s 1997) city (quoting that it Matsushita Elec. Indus. Tower informed the American 574, approved Corp., be- v. Zenith Radio 475 U.S. the Co. considered 1348, 1356, a 89 L.Ed.2d 538 city had not made decision 106 S.Ct. cause the (1986)). days, required by party resisting summary as Minn.Stat. within 60 15.99, day, judgment § 2 On the same must do more than rest on mere subd. posi- Appellate told of American Tower’s averments. Id. at 71. courts being after tion, light to discuss view the most favor city the council convened evidence application. party summary American able to the whom against American Tower’s Bellomo, notwithstanding, judgment granted. the was Fabio v. Tower’s notification with its review and 504 761 city moved forward N.W.2d 1999. denied the December I. 15.99, (1998), per- § subd. 3 Minn.Stat. city argues that Minn.Stat. municipalities unilaterally to extend mits (1998), 15.99, § 2 subd. conflicts with the 60-day for munici- statutory the deadline Telecommunications Act and is therefore up days to an additional 60 pal action for 15.99, § preempted. subd. Minn.Stat. applicants of an intention to by notifying provides that a applica- maintains that the do so. approve deny or [municipality] must materials sent to American Tower tion days request relating within 60 a written a notice. contained such n * * n * n . deny to zoning Failure complaint petition a and a filing After days approval 60 request within mandamus, American Tower for a writ of If request. municipality] the denies [a summary judgment. The dis- moved for request, writing the it must state the motion, reasoning granted trict court at time that it reasons for the denial (a) the Telecommunications Act did request. denies the (b) preempt state law and did municipality may 60-day A extend this of Minn. by requirements not abide for to an additional 60 deadline appeal § Stat. 15.99. This followed. written of the extension provides notice for applicant, stating to the the reasons ISSUES anticipated length. the extension and its the district court err in con- I. Did 3(f) (1998). 15.99, subd. 15.99, cluding that Minn.Stat. subd. Act The Telecommunications also (1998), by preempted is not the Telecom- requirement: contains a timeliness munications Act? or government A state or local instru- city give II. Did effective notice to any act on re- mentality thereof shall Tower of a extension place, con- quest for authorization (1998)? under Minn.Stat. struct, modify personal wireless facilities within a reasonable

service ANALYSIS request after or in- summary duly government with such appeal judgment, from On filed account the strumentality, taking into reviewing court considers whether there scope request. and such of material fact and nature any genuine are issues 832(c)(7)(B)(ii)(emphasis ap- add- 60 47 U.S.C. to consider ed). Act is in- plications permits The Telecommunications to construct telecom- policy See, create a national frame- tended to e.g., Virginia munications towers. deployment Metronet, accelerate the work to F.Supp. at technology. Virginia unreasonable). telecommunications per months is not se Metronet, Supervisors, Inc. v. Board But longer the fact courts have found (E.D.Va.1998). F.Supp. It periods reasonable does not mean that 60 so, by re- part, placing does certain days is unreasonable. upon authority of local bod- strictions language and legislative histo wireless communications regulate ies to Act, ry of the Telecommunications as well facilities. Id. reported as *4 addressing cases the reason effect a preemptive of stat issue, support able-time that view sec law, subject question ute a of to de novo tion 15.99 conflict does not with the Tele Speed Limit Pac. review. In re Union for communications Act and is therefore not 677, R.R., (Minn.App 610 N.W.2d 682 First, preempted. preserves the Act .2000). with, that or State laws interfere authority governments zoning of local over to, contrary Congress are the laws of are matters, providing that (22 Ogden, v. 9 invalid. Gibbons Wheat. nothing in chapter this shall limit or U.S.) 1, 211, L.Ed. If 6 23 Con authority affect the of a State or local occupy given an intent to a gress evinces government or instrumentality thereof

field, that falling state laws within field are over decisions regarding placement, preempted. v. Silkwood Kerr-McGee construction, and person modification of 248, 104 621, 615, Corp., 464 S.Ct. U.S. “ al wireless service facilities. (1984). But the 78 L.Ed.2d 443 ‘historic [spates’ police powers of the are not to be 332(c)(7)(A). 47 U.S.C. Congress has eclipsed to do so was ‘the clear and unless thereby given municipalities in latitude ex- ” Congress.’ of Dahl v. purpose manifest ercising police powers their zoning deci- Co., Charles Schwab & 545 N.W.2d regarding sions telecommunications tow- (Minn.1996) (quoting 922 Rice v. Santa Fe Communications, Omnipoint ers. See 218, 230, 67 Corp., Elevator 331 U.S. S.Ct. Inc. v. Foster Township, F.Supp.2d (1947)). 1146, 1152, L.Ed. 1447 (M.D.Pa.1999) that although places Telecommunications Act certain re- preempts Federal law state law authorities, strictions on local it does not (1) express when a statute contains an preempt ability their to control zoning de- (2) clause, preemption preemption can be regarding cisions telecommunications ser- inferred from the extent of the federal vices). Further, the Act contains a section scope involvement or the of the federal captioned preemption” specifi- “State field, regulated interest in a or state cally prohibits govern- states and local Pikop law conflicts with federal law. ments from regulating entry of Co., or the Burlington R.R. Northern rates charged by mobile services. city argues 332(c)(3). U.S.C. But that section does time limit under law Minnesota provide that the Act’s reasonable-time conflicts with the “reasonable amount of provision preempts regarding state law by federal law time” called for and is thus govern- time within which a unit of local preempted. ment act on an to con- city argues that 60 is not a struct a telecommunications tower. Id. of time reasonable amount to consider an a legislative to construct telecommunica- histories of the Telecom- support In proposi- tions tower. this munications Act and Minn.Stat. 15.99 tion, support cites cases which courts also the view that the two statutes periods longer have found reasonable than do not conflict. The conference committee (1996). This consistent with the intent sug- Act the Telecommunications report on of section 15.99: should be de- timeliness issues gests that at the state level. termined right Minnesota citizens do have the in a response requests in a rea- a to their are to be rendered receive [D]ecisions time, ac- and at the same time not taking timely into manner period of sonable delays scope entangled squabbles * * *. of each re- be nature and count the placement of a request If a for quest. facility involves wireless service personal (Apr. H.F. No. House Floor Debate on * * * period the time zoning variance (statement Brown). 12,1995) Rep. the usu- rendering a decision will be legislature The Minnesota has deter- It under such circumstances. period al is the “usual mined provision give intent of this is not the which a decision should be time” within personal to the preferential treatment application, an including made on a CUP industry process- wireless service to build a telecom- application for a CUP subject or to their re- ing requests, tower, that, provided and has munications any generally applicable but the quest to may unit necessary, local-government zoning decisions. frames an to an addi- grant itself extension *5 (1996) 104-458, Rep. No. at 208 H.R. Conf. days. tional 60 added). Indeed, court as one (emphasis of material genuine Because no issues noted, nothing suggest is to “[t]here

has exist, court’s fact affirm the district we by requiring action ‘within Congress, that no conflict conclusion that there is between time,’ to period a of intended reasonable Act and Minn. the Telecommunications onto a government procedures local force preemption § therefore no Stat. 15.99 and L.P. v. Sprint Spectrum, .” rigid timetable of state law. Medina, 1036, 1040 F.Supp. City of (W.D.Wash.1996); Sprint Spec also see II. Bd., Zoning Hearing L.P. trum v. argues that City of Grant next (inter (E.D.Pa.1999) F.Supp.2d concluding that the district court erred Act’s rea- preting the Telecommunications appli American city approved Tower’s the gonable-period-of-time requirement to be days to act within 60 after by failing cation imposing with a state statute congruent 15.99, § Minn.Stat. subd. receiving it. See Burman, limit); 60-day Flynn time must act on zon (D.Mass.1998) (holding F.Supp.2d it days within 60 is ing application had not failed to that a local commission provisions Two approved). deemed within time limit set application act on an municipality § to 15.99 allow Minn.Stat. and, consequently, law had not by state limit for act 60-day initial time extend its un within a time failed to act reasonable pro application. The first ing on a CUP Act). Thus, un der Telecommunications application if an is vides for an extension Act, law the Telecommunications state der municipality the to incomplete requires but what is a reasonable determines application incomplete notice of the send applications to build tele time to act on receipt. days of its within 10 business towers. communications 3(a) 15.99, subd. Minn.Stat. Appeals Finally, the Court of Wisconsin Here, city notify the did concluded that the Telecommunication has application that its Tower within 10 provision, is intend Act’s reasonable-time incomplete. was “stop keeping local authorities from ed to provides also that The statute providers hearing tied wireless may extend the time municipality] [A v. Wal process.” Westel-Milwaukee Co. * * * Com’n, the initial limit the end County Planning Park & worth before written no- period by providing 60-day 205 Wis.2d applicant. injustice tice the extension to the or an if absurd result the lan- the permit The notification state reasons will guage reasonably another con- anticipated for the extension and its (citing struction. Id. Minn.Stat. length, may 645.17(1)). which not exceed 60 approved by applicant. unless argues American Tower that Minn.Stat 8(f) (emphasis city 15.99 does not allow the grant to added). 60-day itself a full extension to act on a city application that it claims application ap- CUP before it an receives mailed to American Tower contained a no- or, matter, plication for that it before even tice, statutory 60-day of extension of the sends an form a prospective to limit following because the statement applicant. American Tower reasons that printed appli- on the reverse side of all practice such a renders re- pro- cation forms sends quirement of the statute meaningless and spective applicants for CUPs: city thereby grants an ex- itself hereby City

You are notified that the tension to act on an without hereby extending Grant the time knowing necessary. it is required deadlines section 15.99 M.S. hand, city, on the other ar respect with request you to the written gues that a reading literal of the statute City. have made to the The extension is (1) permits practice, its (60) sixty days. made for an additional gives written notice of the extension before reason the extension is to enable 60-day period, the end of the initial indeed City planning Council and the com- 60-day period before the begins; fully mission to more deliberate with extension, gives although reasons for the respect your request and to allow *6 they generic are city reasons that the City pre- staff and consultants time to (3) apply claims all applications; to and the pare necessary findings with respect the written anticipated notice states the length City’s to the ultimate determination. extension, of the which is in all cases the This timeline until begin does not the maximum of days. But a literal con application complete all required with struction is not if adopted to be it is con submissions. trary general object to the policy and of a Therefore, city argues, complied the it Estate, statute. Raynolds’ In re (1) with requirements by the of the statute 449, (1945). Minn. 18 N.W.2d giving written notice of the be- extension agree We with American Tower that the expiration 60-day fore of the initial dead- city’s practice in general, specifically and (2) line, stating the reasons for the exten- case, in this 60-day makes the initial re- sion, anticipated and the indicating quirement of the meaningless. statute length of the extension. legislature The has stated that parties disagree over object interpretation [t]he of all and con- city whether section 15.99 allows the to struction of laws is to ascertain and ef- give notice of an 60-day extension of the fectuate the legislature. intention of the limit before an is submit construed, Every law possi- shall be statutes, In interpreting ted. courts ble, give to provisions. to all its effect legislature’s ascertain and effectuate the § added); intent. Minn.Stat. 45.16 (emphasis Where Minn.Stat. 645.16 see legislature’s the clearly intent is discerni also Willmus ex rel. Willmus Commis- plain Revenue, ble from unambiguous language, and sioner 371 N.W.2d (Minn.1985) necessary permitted. no construction is that “a statute is to Russell, Ed Herman & Sons v. 535 be construed as a whole so as to harmon- N.W.2d A court ize give parts.” and effect to all of its (citation omitted)). should not construe a statute to lead to city’s practice act was ineffective because for the to a statute consistent with wholly would be Tower sub- given it was before American municipalities 120 gives simply application. Because application. mitted its CUP act on a CUP to act and should be applications can routine intend legislature the expeditiously,

ed on DECISION 15.99, ed, to allow enacting Minn.Stat. in granting The district court did not err 60-day initial of the an extension American Tower summary judgment to “extenuating circum there are only where preempt- not 15.99 is because No. Hearing on S.F. stances.” 617 Before Act and by the Telecommunications ed Comm, Oper on Governmental the Senate city’s the notice to Tow- because American 1995) (Mar. 29, ations and Veterans 60-day it itself a granting er that was (statement Riveness). of Sen. extension was ineffective. Fairmont, Inc. city cites Manco Affirmed. Bd., (Minn.App. v. Town require 1998), proposition that the for the CRIPPEN, (dissenting) Judge directory, § 15.99 are ments of Minn.Stat. held mandatory. While this court

not impose I on state and Because would not the provision requiring that case that government agencies a rubric local an extension is reasons for statement of by legislature, announced has been limit that the directory, it also held I the trial court’s decision would reverse Further, Man- mandatory. Id. at 295. re- appellant City approved of Grant present from the case distinguishable co is Tower’s spondent American sent notice township Manco because the city. build a tower completed it received of extension after the end” of Upon given notice “before Here, Id. at 294-95. application. following appli- an 60-day period the initial even itself an extension granted before cation, municipality may give itself application materials to sent investigate, to an additional Tower. and decide the merits of upon, deliberate statutory conclude that We zoning application. Minn.Stat. by and intended scheme envisioned 3(f) (1998). 60-day-extension *7 it enacted Minn.Stat. legislature when interpretation meaningless by any clause in the normal requires to act 15.99 to it. given application within 60 course on a CUP reason, cases, munici any In all If, application is received. days after the employ the extension pality is free application, upon review of an 3(f) says clause. Minn.Stat. cir extenuating that there are determines in a to limit the reasons useable nothing an extension of require cumstances that extension, specific may which be notice for act, may 60-day period to it the initial to the circumstances generic to the case or extension, before the end of itself an grant Moreover, the need to municipality. of the period, upof to an additional the initial a di counted declare reasons has been applicant -written notice days by giving Manco a mandate. rection without of extenuating circum that describes the Fairmount, Bd. Rock Dell Inc. v. Town anticipated length of the and the stances (Minn. 293, 296 N.W.2d Township, 583 extension. (Minn. Oct. App.1998), review denied reading city’s conclude that the We 1998). inconsistent both 15.99 is employed a has legislature Because the and the intent of the language with the agen- limit on the freedom meaningless therefore affirm the district statute. We of 120 employ a deadline cies to city’s that the notice court’s determination rules of days, there are no rather than 60 an extension of time to American Tower of making sug- preempted by it reasonable to state law is not the Tele- construction communications Act. circum- extension be for gest op- as unique to the stances generic that are for the

posed to those municipali- available in the

zoning process

ty. suggest It is no more reasonable appli- to individual given

that the notice be

cations after the time of their effectively given to opposed as to a notice Minnesota, Appellant, STATE prospective applicants. all judicial responsibility It is a to effectu- HOELZEL, Respondent. Richard Alan legislature’s ate the intent. Minn.Stat. But the courts cannot 645.16 No. C8-00-851. manufacture content for statutes without Appeals Court of Minnesota. history of the enactment that language or makes that intent evident. See id. (requir- Dec. 2000.

ing unambiguous language for the regard enactment, pretextual pur-

of an without spirit). legislature

suit No of its doubt

intended that the extension should only “extenuating

be circumstances.”

But it left to the task of

determining which circumstances are ex-

tenuating, without limitation. respondent’s application

When was re-

ceived, appellant necessary found it to em-

ploy 120-day approval period all cases permit- arising. legislature

then has municipal If the

ted this determination. otherwise, legisla-

law is to be it is for the

ture, courts, not the to alter the mandate. Hastings,

See Marbincov. 265 Minn.

497, 122 (stating “[i]f N.W.2d 631 statute, change

there is to be a legislature, from the for the come *8 supply legis-

courts cannot that which the purposefully inadvertently

lature omits or

overlooks”). nothing

Because I see this statute or history gives

its us the freedom to importance initial

enlarge the of the 60-

day approval period or to diminish the

freedom of to extend days, respectfully additional I for 60 differing

dissent from the construction of majority opinion. I con- statute

cur majority with the in its conclusion that