*2 tion of cellular transmission towers is de- TACHA, Before Judge, Chief fined generally by the Broken Arrow Zon- BRISCOE, Circuit Judge, UR,* and SHAD ing VIII, Ordinance. Article section 18 of Judge. District the Zoning Ordinance specific sets forth TACHA, Chief Circuit Judge. requirements. VIII, Under Article section 18.6, person entity “[n]o United States Telephone shall hereafter Tulsa, construct, (“U.S.Cellular”) own, Greater L.L.C. or operate any communica- brought separate two tion suits in federal in excess of fifty feet in court, challenging height decisions by above the mean elevation of the Arrow, (“the Broken ground Oklahoma City”), parcel de- the lot or on which it is nying specific (“SP”) built, use permit requests person unless said has obtained a for the construction of cellular permit transmis- construct from the of Bro- sion towers. On October the dis- ken Arrow.” With exceptions limited trict court City’s here,1 reversed denial applicable the ultimate authority to * Shadur, Honorable Milton I. District specific id., Senior certain permits. use See art. Judge Illinois, for the VIII, 18.3, Northern District of §§ 18.10. sitting by designation. Ordinance, 1. Under the approve ''administratively” fol- shall consider the including per- permits, specific
issue ... lowing of “telecommuni- factors construction mits for the towers,” in the Coun- resides cations (a) tower; height Broken Arrow generally cil. See (b) of the tower to residential proximity Ord., *3 adjacent and residential structures permitting process pro- general, the boundaries; lot the Broken Arrow as follows. Once ceeds (c) adjacent and near- nature uses (the “Planning Com- Planning Commission by properties; mission”) permit application, receives a (d) surrounding topography; member, usual- Planning Commission staff (e) surrounding coverage tree and fo- Director, an prepares ly Planning the liage; Packet,” forth the which sets “Agenda (D tower, particular of the with design request, the the ex- background permit design reference to those character- applicant’s of the conformance with tent which have the effect of reduc- istics applicable and Zoning the Ordinance other eliminating visual obtrusive- ing or law, the member’s recommended and staff ness; The of the preparer course of action. ingress routes of and (g) proposed to all report Packet submits this egress; Planning the Commission. members of (h) not the is con- whether or tower public hearing, the Plan- After notice and structed so as to be available for co- ning forwards its recommen- future; location in the and City the for further con- dation to Council (i) suitable, are whether or not there City public comment. The sideration or existing supporting towers other hearing then holds a final Council capable meeting structures accept reject whether to decides technological applicant. needs of the recommendation.2 Commission’s Id., VIII, § If the Council decides to an art. 18.12. Section 18.12 also “shall be con- application, decision may modify that “the Council states writing, together if, veyed applicant to the one or more of these criteria summary of the evidence which particular application, circumstances of the Id., application.” a denial of the supports goals Council concludes that the [the] VIII, § art. 18.16. Zoning better [the Ordinance] intent of are by such modification.” Id. Section served Requirements B. Under tow- provides “[n]o 18.13 further new Ordinance permitted er should be Coun- cil, applicant an demonstrates to part permitting process, As of the unless reasonable satisfaction applicant provide must information, that no tower or other structure required with certain set forth 18.11(A)-(F) applicant’s proposed can accommodate the sections 18.7 and Id., § Finally, the Zon- respect Ordinance. to the antenna.”3 18.13. With City’s general specif- ing of whether to issue a Ordinance sets forth determination construction in cer- permit, provides: policy regarding ic use section 18.12 five factors the 2. The Council reviews the Com- 3. Section 18.13 then lists application only determining denial of an if the mission’s consider in una- request applicant files a within written vailability of alternate sites. days. districts, tain zoning September 18, which “towers assigned normally are discouraged in A-l and RE the East Avenue the zoning clas- [agricultural and residential] dis- “AR-1,” sification a transitional-zoning cat- tricts, applicants shall be required to egory denoting single-family residential establish the elements application use; at the time of U.S. applica- Cellular’s convincing Id., clear and evidence.” tion, however, there were no residences on 18.11(G). the property.4 The land surrounding the East Avenue property was zoned as fol- C. U.S. Cellular’s Applications Permit north, lows: AR-1, single-family February On residential; south, A-l, to the agricultural filed applications two specific per- with one single-family residence; to the mits with Planning Commission, seek- *4 east, AR-1, single-family residential; (1) ing to construct following: the a 120- west, AG, to the agricultural. foot “monopole” cellular transmission tow- As part of their application, Cellu- U.S. er on a tract land located at 10525 South lar submitted maps two prepared by radio 193rd Arrow, East Avenue in Broken frequency engineers. (the map first Oklahoma “East Avenue property”) showed U.S. (“SP-149”); (2) existing Cellular’s coverage 240-foot, a self-sup- within City. the The second porting cellular illustrated the transmission tower aon additional coverage ten-acre Cellular tract of land U.S. owned the would be Forest provide able to Church, Ridge following Baptist completion located at 8300 the proposed Arrow, South Oneta Road in Broken SP-149 tower. U.S. Cellu- Okla- (the homa lar “South also Oneta Road attached property”) the affidavit of Keith (“SP-150”). Sach, an Associate Radio Frequency En- gineer with affidavit, U.S. Cellular. In his In addition to SP-149 and stated, alia, Mr. Sach inter that “[t]here Cellular had filed permit numerous other are no existing permits towers or for tow- applications with the to construct cel- ers located within [one-half] mile of the lular For example, 18, towers. on June ¶3. site.” [SP-149] Finally, Sach Affid. 2001, Council approved U.S. Cel- U.S. Cellular’s application also stated that lular’s application to construct a 100-foot “[n]o tower can accommodate the monopole on Queens tower the west side of proposed support antenna.” In of this fact, Circle. according Groat, In Doyle statement, U.S. Cellular referred to the a U.S. engineer, as of July coverage attached maps and Mr. Sach’s U.S. Cellular completed eight had affidavit. projects within the City. At least three of
these projects involved new tower con- 2. SP-150 struction; the remaining apparently five involved co-location. In SP-150 application, its proposed to construct a 240-foot on tower
1. SP-U9 the South Oneta Road property, a ten-acre In application, SP-149, its tract first of land in U.S. Cel- part southeast lular proposed construct a 120-foot owned the Forest Ridge Baptist monopole on tower the East Avenue prop- Church. At the time of U.S. Cellular’s erty, a six-acre tract on application, annexed the South proper- Oneta Road fact, south, closest pro- residence to the agricultural on land zoned for use. posed site was located 300 feet proposed SP-149’s requirements; “AA-1,” transitional-zoning back a
ty was zoned AR-1, transitional-zoning a Al- site was zoned use. agricultural indicating category no new law applicable category, and February on though tract until on the could commence for use change approved zoning was ob- conventional appropriate pursuant property, Road Oneta the South platted;6 had site been “A- tained and the zoned would be property to which the for U.S. site existed suitable an alternative category indicat- conventional-zoning 1,” a monopole 120-foot had Cellular’s use, City Council ing agricultural from SP-149’s tower, one-half mile located being the site approval conditioned County the east side proposed site the events time of At the platted. Road; not include SP-149 did Line Church Ridge Baptist the Forest question, required under landscape plan, as Road the South Oneta platted yet had not find- on these Based Zoning Ordinance. bordering South The land property.5 recom- Daroga Planning Director ings, as follows: was zoned Road Oneta mended that R-l, west, single-family the north the Plan- All members SP-149. east, undeveloped residential; to the copy received ning Commission residence; and to single-family one Packet. single- A-l, with one south, agricultural, *5 family residence. Recom- Planning The Commission b. Deny the Council mends that Denials City’s The
D. SP-U9. 1. SP-U9 2001,7 Planning Com- the April On Packet Agenda The a. begin- At the considered SP-149. mission Director Da- Planning hearing, Commission’s ning Planning to the Prior Daroga, Planning Commission 26, 2001, Farhad the meeting, roga April addressed Director, an the prepared findings the contained Planning City’s discussed the Plan- prepared. back- he had setting Agenda the Packet Packet forth Agenda deny- Daroga recommended concerning ning SP-149. Director ground information SP-149, application “the stating that Daroga ing Planning Director particular, re- minimum setback the con- does meet degree to which SP-149 the discussed and the percent, is 120 quirements, In his which Zoning with the Ordinance. formed R-l, zoning code zoned the is Daroga property made Director Planning report, towers in resi- (1) discouraging cell calls for did SP-149 observations: following the in the Later districts.”8 dential-zoned Zoning set- to the not conform Ordinance’s 7, 2001, the noted that 6. Packet May the Coun 5. Apparently, on for the same agreement with the Forest had denied SP-144 an Commission cil had reached Church, of the South Ridge Baptist owners reason. platting until property, "to defer Oneta Road At project considered.” is expansion the next SP-150 hearings for both SP-149 7. The 18, 2001, meeting, Council the June originally scheduled for March were disa members some Church and hearings at tabled both but constituted an greed as whether SP-150 to request U.S. Cellular. project,” revoke "expansion which would June platting deferral. In his Church's Daroga had not raised Director City Manger not report on Agenda Packet. in the second concern this platting waiving ... "[pjlatting ed that prerogative of the requirement Council.” hearing, Planning Daroga requested Director noted Mr. Coutant that the Planning several alternative there were sites approve “subject SP-149 within one-half mile of the site subsequent rezoning.” Mr. Coutant sug- just an over one-half gested that it made little economic sense away mile suitable for co-location. He for U.S. Cellular to incur the costs associ- relating no evidence to the ade- presented ated with obtaining zoning change be- quacy of these sites. City approved fore the SP-149. Following Planning Daroga’s Director Finally, Mr. Coutant asked Doyle Groat remarks, Coutant, opening Kevin an attor- Sachs, and Keith two engi- U.S. Cellular Cellular, ney for U.S. addressed the Plan- neers, respond regard- the concerns Mr. ning Commission. Coutant stated ing alternative sites. In addition to Mr. objective” “primary that SP-149’s was to general comments, Groat’s Mr. Coutant provide enable coverage referred the Commission to coverage Turnpike, anticipation on the Creek map, which U.S. Cellular had attached to During increased demand. presenta- his application. Mr. Coutant ex- tion, Mr. attempted Coutant to address that, plained in addition to providing cov- Agen- several of the concerns raised erage turnpike, da Packet and in on the previ- Commission members’ which he had comments, including questions relating to: ously characterized as “primary SP-149’s (1) Ordinance’s setback re- objective,” U.S. Cellular’s decision to lo- sites; quirements; alternative cate SP-149 on the East Avenue prohibition against Ordinance’s was based on the fact that this location areas; transitional-zoning new uses in and would enable it to a “multiplicity achieve City’s general policy disfavoring the objectives,” including “in-building pen- *6 construction of cellular towers within sin- at etration” Northeastern State Universi- gle-family residential areas. (“NSU-BA”) ty’s Broken Arrow campus.10 issue,
Concerning the setback Mr. Cou- Planning When Director Daroga inquired that, argued tant fair reading under a of whether U.S. Cellular had considered co- 18.14, complied section with the locating on the tower close the requirement Ordinance’s setback campus, NSU-BA Mr. responded: Sach property along because the the south bor- well, yes, we’ve that.... considered “Yes— der of the East Avenue give type [I]t won’t us the of service cover- agricultural zoned for than use rather resi- age wanting only we’re—we’re not for the dential use.9 campus [NSU-BA] but also for in-vehicle coverage along turnpike the respect prohibition against With to the section we’ll new transitionally-zoned property, going uses on be in.” U.S. Cellular offered no that, SP-149, Planning Daroga opinion 9. approving Director based his bers’ concern was that, contrary though (with to the on the fact even it it would create a zone of land a radius use, agricultural was zoned for there awas equal percent height) to 120 tower's the single-family property. residence on the developed single-family that could not be for however, During hearing, Planning residential use. expressed Commission members a different during In his remarks Com- inquired concern. Some members about the hearing later mission’s Mr. Cou- approval might place of SP-149 limitations objective just tant stated: "The here is a little City’s ability proper- on the to later rezone the ty single-family bit different than —than what we discussed at south of the site for use, light truly coverage [SP-149] residential of section 18.14’s set- site. This is words, requirement. back In other the mem- site.” of the consequences comfortable with state- Mr. Sach’s to substantiate evidence entirety of tower on impact [the] ment. analysis suggest ... and his that radius hearing, At the conclusion of his good utilization this—this is that unanimously voted Planning Commission disagreed Coutant also property.” Mr. Mi- Manager, SP-149. interpre- Planning Commission’s with the Kadlecik, forwarded then D. chael require- 18.14’s of section setback to tation recommendation Planning Commission’s interpreta- Mr. Coutant’s report in a ment. Under City Council and the Mayor tion, prohibit not Zoning Ordinance did 2001.11 dated June 120-per- within residential construction the Plan- Adopts City Council c. The tower; radius of a telecommunications cent Recommenda- ning Commission’s rather, construc- only prohibited it Deny tion to SP-H9. resi- 120-percent radius tion within a held words, On June ac- In other dential construction. hear- During the hearing on SP-149. Coutant, 18.14 to Mr. section cording expressed City Council members ing, placed [telecommunications “a burden non- SP-149’s concerns: primary three resi- prevent did] ... providers] [but Zoning Ordinance’s with the compliance tower.” around the development dential imped- SP-149’s requirements; setback Mr. Coutant next addressed development on iment to residential new uses against prohibition Ordinance’s light property, Avenue the East around again transitionally-zoned property and for require- Zoning Ordinance’s setback condition- City Council requested that the ments; of alternative the existence SP-149, subject to U.S. Cellu- ally approve locations. necessary conventional securing the lar again ap- hearing, Mr. Coutant At the Spe- platting. completing In ad- on behalf of U.S. Cellular. peared stated, “we under- cifically, Mr. Coutant Council, Mr. Coutant dressing the your fact code and nod to the stand earli- at the the concerns voiced discussed rezoning, would ask but contemplate does Commis- hearing er before subject approval condition.” Cellu- question, setback sion. On the *7 position of the to relocate the agreed lar availability Finally, respect to the with site, in order to proposed tower on the sites, re- again Mr. alternative Coutant Commission’s Planning conform with the coverage to the Council ferred 18.14’ssetback re- of section interpretation to U.S. Cellular’s maps attached quirement.12 to address application attempting while to the Plan- responded also Mr. Coutant concerns. specific member’s Council imped- about ning concerns Commission’s hearing, the Following this the East development on ing residential recom- Planning Commission’s adopted surrounding and the property Avenue July On and denied SP-149. mendation Initially, noted land. Mr. Coutant 17, 2001, Daroga, Director Planning landlord, property, is the owner of the “our Zoning interpretation Ordi- nearly to the Council's report identical This 26, 2001, Agen- specifically, the April requirements, nance’s Commission’s setback meaning “adjacent da Packet. lot bound- residential Ord., Zoning Broken Arrow aries.” See posi- his earlier abandoned 12. Mr. Coutant VIII, § 18.14. tion, disagreed with the he had in which City, you your sent written notification and suggest behalf of clients and addition- al sites within decision to Cel- this area.” Council’s U.S. lular, required as under article sec- 2. SP-150 Zoning
tion 18.16 of the Ordinance. The following set forth the four rea- letter Agenda a. The Packet 13supporting sons Council’s deni- Planning Director Daroga prepared also (1) proposed al: U.S. Cellular’s tower did Packet for SP-150. his not meet the Ordinance’s setback report, Planning Director Daroga recom- (2) requirements; proposed U.S. Cellular’s denying mended SP-150 for the following AR-1, a transitional-zoning site was zoned (1) reasons: proposed SP-150’s site was and category, applicable under law no new AA-1, zoned a transitional-zoning catego- may on land until appropri- commence ry, and under applicable law no new use (3) obtained; zoning ate conventional is prior commence on land appli- to the proposed U.S. Cellular’s site was zoned cant obtaining appropriate conventional AR-1, designation similar to the R-l completion and the platting and single-family designation, residential (2) review;14 site-plan applicable prohibited law telecommunica- approved had SP-150’s proposed site for heights tions towers excess of 50 A-l zoning, towers are normally discour- any feet property actually used for a aged districts, in A-l zoning and U.S. Cel- (4) single-family residential purpose; and presented lular had not “clear and convinc- other suitable sites existed for Cellu- ing supporting evidence” application, as tower, proposed lar’s telecommunications (3) required Ordinance; under the specifically, an tower mile one-half at least two alternative suitable sites exist- north of U.S. proposed Cellular’s site. ed proposed for U.S. Cellular’s 240-foot Planning Director Daroga enclosed the fol- tower, one located one-half south mile lowing supporting materials with the let- the South Oneta Road and anoth- (1) ter: the Planning Agen- Commission’s er located one and one-half miles south- Packets, 22, 2001, da dated March (4) west; and SP-150 did not include a 26, 2001; April City Manager’s landscape plan, required the Zon- Council, report to the City dated June ing The report Ordinance. also noted that 2001; the minutes of the Cambridge Estates subdivision bor- hearings Commission’s on March dered SP-150’s site to the north 26, 2001; April minutes and west and stated that high “[a] 240-foot hearing on June adjacent single-family homes 2001. The letter concluded with the fol- not a desirable land use.” All members of *8 lowing: you pursue “If wish to a site for a the Planning copy Commission received a vicinity telecommunications tower in the Agenda prior hearing of the Packet to the discussed, glad we would be to work with on SP-150. during report Planning
13. The letter stated that "[a]s discussed 14. The that indicated plan Planning Commission had a for the Council received site Commission property, South Oneta Road but also noted hearings, application this denied sev- platted that "the has not been reasons, including, eral but not limited to the applicable zoning requirements all have not (emphasis set forth [reasons letter].” in the facts, completed.” been Based on these Plan- added). ning Daroga described SP-150 Director “premature.” no, disagree I—I says, and can’t Recom- Planning Commission The b. Mr. also stated: that.” Coutant Deny Council that mends of the just suggest because I would SP-150. presented been and— matters that have Planning Commis- April On and the fact and the need for service Planning hearing on SP-150. sion held its of quite in one tower takes care that this over- Daroga presented brief Director the foreseeable future a broad area for his recommenda- gave of SP-150 view sense, in this needless imposing, without Mr. Planning Commission. tion to the multiple pro- towers construction on behalf of U.S. again appeared Coutant range the same service is—is vide Cellular. the [clear that overcomes application convincing evidence] al- burden the two first addressed Mr. Coutant you suggest. Agenda in the noted ternative locations Coutant, According to Mr. nei- Packet. statements, six Following Mr. Coutant’s nearly ... the cover- give ther site “would spoke opposi- in Broken Arrow residents the location of age support that would SP-150, voicing concerns related to tion of benefit to facility” “give the best In addi- impact.16 new the tower’s aesthetic tion, wrote letters to community.” Mr. at least two residents the most citizens strenuously ob- Planning Commission support offered no evidence Coutant spoke in jecting to SP-150. One resident supporting Nor did the this conclusion. favor of SP-150. appli- Cellular’s SP-150 materials for U.S. or finan- technological
cation address hearing, At Plan- the conclusion of of the alternatives feasibility cial of either ning Daroga Director stated: Agenda in the Packet. mentioned be de- Staff recommends that SP-150 improper zoning due to and the nied Next, that the “tran- Mr. Coutant stated towers in discouraging ordinance zoning issue raised sitional” A-l A-180 foot tower17 district. reading his Packet was moot under adjacent single-family to a residential Ordinance, since and their recreational neighborhood prop- the South Oneta Road approved had comprises which of the recreational area zoning. for “conventional” Mr. Cou- erty inappropriate is an amenities back there however, state, that re- tant went on to site. This use—land use a—this site certainly gardless, Cellular] would “[U.S. is surrounded on three sides—or four pleased to have an entertain and—and be usage. residential that —that approval that had conditions then Planning The voted changed.”15 zoning had to be unanimously to recommend that the respect to the Ordinance’s With City Manager SP-150. disfavoring statement tower con- policy Commission’s rec- forwarded areas, Mr. Mayor in A-l Coutant con- struction ommendation to the and the Council, ceded, “[n]o, report in a June 2001.18 exactly your that is what code dated Commission, regard- Cou- offer 17. Before the Mr. 15. Mr. Coutant made a similar ing platting Oneta Road proposed height for the South tant amended SP-150’s from property. 240 to 180 feet. *9 Although meet- Commission's 16. Manager's report nearly City 18. protesters ing minutes indicate that 12 to 14 April identical to the Commission’s meeting, transcript at the were 26, 2001, Agenda Packet. actually hearing only spoke indicates six opposition. out in Adopts however, c. The the Plan- ter in the hearing, Mr. Coutant ning Commission’s Recommenda- indicated that U.S. Cellular would consider Deny tion to SP-150. a 100-foot camouflage The City tower. Council then concluded the meeting and 18, 2001, On June Council held agreed to hold another hearing on July its 150. hearing During SP the hear- 2001. ing, posed ques- Council members various Coutant, to Mr. again appeared
tions who 16, 2001, July On Council held on behalf of U.S. Cellular. hearing second on SP-150. At the outset, Planning Director Daroga noted
Vice-Mayor Tony Petrik Mr. asked Cou- that U.S. Cellular had submitted no addi- tant prepared whether U.S. Cellular had tional information in response to the Coun- maps coverage indicating a 100-foot 18, 2001, cil’s request June for additional provide. Vice-Mayor tower would Petrik possibility information on the of a 100-foot presented other Council members camouflaged tower. photographs with of a 100-foot “camou- flaged” church grounds Sapul- tower on Kelly Ms. Knopp Balman appeared on pa, Oklahoma.19 Mr. Coutant indicated behalf of U.S. Cellular. Initially, Ms. Bal- had prepared any man addressed the Council’s earlier fact, maps. such Mr. Coutant stated suggestion of a camouflaged 100-foot tow- that U.S. Cellular would not consider a er. Ms. Balman stated: “U.S. Cellular has 100-foot tower.20 discussed 100-foot with engi- their neers and with the personnel business protesters
Several at appeared the June respect to aspects the economic as well as 18, 2001, citizen, hearing. Shelly One network, the engineering needs of the cell Schaede, presented petition disapproving and we have determined that the 100-foot signed by 70” “about residents ... tower will not meet our needs.” Ms. neighborhood bordering the South Balman submitted no evidence in support property. Oneta Road of this conclusion. As the hearing proceeded, City Council Groat, Mr. engineer, a U.S. Cellular also expressed members increased interest Cellular, appeared on behalf of U.S. possibility of a camouflaged 100-foot discuss the technical aspects of SP-150. tower. sug- Councilman Wade McCaleb Although provided expla- Mr. Groat some gested postponing the Council’s vote on nation of “siting” process, U.S. Cellular’s so that U.S. Cellular could consid- he offered no reports or other evidence to er such a provide modification and support U.S. Cellular’s site. coverage with a for a map 100-foot tower. Thus, U.S. Cellular’s initial application Mr. Coutant initially sug- dismissed the packet coverage maps and its attached “Gentlemen, gestion, stating: excuse me. were the sole materials U.S. Cellular sub- I ... appreciate the—the spirit compro- mitted to the of its support suggested by mise that —that the mo- application. mean, tion. I ... brought we it down to 180 feet because that’s ... July lowest At the conclusion of the that —that accommodates the La- hearing, need.” unani- Council voted Ridge Baptist pastor, 19. Specifically, The Forest Church’s Mr. Coutant stated: "We Gray, positively Reverend reacted to Vice- would not build a tower. It—it—it 100-foot Mayor suggestion, noting Petrik’s that "if we purpose.” serve no would satisfy satisfy could U.S. Cellular and —it certainly satisfy would the church.” *10 1132 2001, II. Discussion July On
mously
deny
to
SP-150.
to
Daroga sent a letter
Planning Director
Applicable Law
A. Overview of
City, con-
behalf of the
limitations set
Except for the narrow
denial,
citing
City Council’s
firming the
332(c)(7)(B),
§
“[t]he
in 47 U.S.C.
forth
(1)
pro-
U.S. Cellular’s
reasons:
following
pre-
expressly
Act
Telecommunications
AA-1, a transitional-
zoned
site was
posed
authority over the
zoning
serves local
applicable
law
category, and
construction and modification
placement,
until
commence on land
no new
facilities.”
personal
of
wireless
service
zoning is ob-
conventional
appropriate
Bd.
v.
Telephone
Cellular
Co.
(2)
tained;
proposed site
Cellular’s
U.S.
Ho-Ho-
Borough
Adjustment of
zoning,
for A-l
conditionally approved
(3d Cir.1999).
Kus, 197 F.3d
con-
discourages law
applicable
and
332(c)(7)(B) places six restric-
Section
requires
areas and
clear
in such
struction
authority of state and local
tions on the
applicant’s
convincing
and
evidence
placement,
governments
regulate
(3)
area;
within such
need to construct
construction,
personal
and modification of
existed for U.S. Cellu-
other suitable sites
these
wireless service facilities. Three of
tower,
proposed telecommunications
lar’s
First, “[a]ny
procedural.
restrictions are
co-location;
available for
including towers
government or
decision
a State or local
(4)
no materials
provided
instrumentality
request
thereof to
request
response
Council’s
construct,
modify personal
or
place,
a 100-foot cam-
that U.S. Cellular consider
in writ-
wireless service facilities shall be
site, despite
for the
the fact
ouflaged tower
332(c)(7)(B)(iii).
§
ing.” 47 U.S.C.
Sec-
provided U.S. Cellu-
that the
ond,
“supported by
denials must be
such
do
lar a month to
so.
in a written
substantial evidence contained
Third, local authorities must
record.” Id.
that the
Coun-
The letter indicated
for authorization to
any request
“act on
on “[U.S.
cil reached its conclusion based
construct,
place,
modify personal
or
wire-
submittals,
Com-
Cellular’s]
service facilities within a reasonable
less
recommendation, findings by
mission
duly
period
request
of time after the
Council,
possible
and the fact that all
government
filed with
or instrumen-
such
alternatives and the
Ordinance
into account the nature and
tality, taking
Planning Director
were not followed.”
Id.
scope
request.”
such
following supporting
Daroga enclosed
332(c)(7)(B)(ii).
§
(1)
materials with the letter:
Packet,
April
dated
Commission’s
remaining
requirements
three
lim-
26, 2001;
City Manager’s reports
authority
iting state and local
over
Council,
18, 2001, and
construction,
dated June
and modification
placement,
2001;
Plan-
July
the minutes of the
facilities are
personal
wireless service
First,
ning
hearing
April
Commission’s
local authorities “shall
substantive.
2001;
unreasonably
among pro-
the minutes of the
discriminate
functionally equivalent services.”
hearing.
June
The let-
viders of
332(c)(7)(B)(i)(I). Second,
gov-
§
local
following:
you
with the
“If
Id.
ter concluded
have the
prohibit
ernments “shall not
pursue
wish to
site for
telecommunica-
discussed,
per-
prohibiting
provision
effect of
vicinity
tions tower
we
Id.
your
sonal
services.”
glad
you
would be
to work with
wireless
332(c)(7)(B)(i)(II).
Finally, Congress
suggest
within
clients
additional sites
govern-
or local
provided
“[n]o
State
this area.”
*11
instrumentality
ment or
thereof may reg-
nance to ascertain the substantive criteria
placement, construction,
ulate the
be applied.
See
Amherst,
Town
N.H.
personal
modification of
wireless service
Omnipoint
v.
Communications Enterpris-
facilities on the basis of the
es, Inc.,
environmental
9,
(1st Cir.1999).
173 F.3d
14
In
effects of radio frequency emissions to the
sum, “[t]he reviewing court’s task is to
extent that such
comply
facilities
with the
determine whether the [local authority’s]
regulations
Commission’s
concerning such decision,
guided
as
by
law,
local
is sup-
332(c)(7)(B)(iv).
§
emissions.” Id.
ported by substantial evidence.” Borough
Ho-Ho-Kus,
B. the City’s Whether Denials SP- one.”). decision is a narrow . and SP-150 Supported by Were 149 said, That review, “[our] though highly ” “Substantial Evidence. ” deferential, ‘is not a stamp.’ Todd, rubber 1. The Substantial 244 Evidence F.3d at Standard 58-59 (quoting Air Penobscot Servs., Ltd. v. Admin., Fed. Aviation 164 47 332(c)(7)(B)(iii), U.S.C. Under (1st 713, F.3d Cir.1999)). 718 “Substantial “[a]ny decision a State or local govern evidence is such evidence a reasonable ment or instrumentality thereof to deny a mind might- accept adequate support request construct, to place, modify per the conclusion reached the [decision- sonal wireless service facilities shall inbe maker]: Substantial requires evidence writing and supported by substantial evi more-than a scintilla but less than a pre dence contained in a written record.” Sec ponderance.” Sandoval v. Aetna & 332(c)(7)(B)(iii)’s tion substantial-evidence Life Co., Casualty (10th Ins. 967 F.2d 382 requirement “does not ‘affect or encroach (internal Cir.1992) quotation marks omit upon the substantive standards to ap be ted). “The possibility of in drawing two plied under established principles of state ” consistent conclusions from the evidence and local law.’ Cellular Telephone v.Co. does prevent an agen administrative (2d Town Oyster Bay, 166 F.3d 494 “ cy’s findings from Cir.1999) being supported (citation omitted). by sub ‘Substantial Curtis, stantial I.C.C., evidence.” Inc. v. evidence’ review under the [Telecommuni (10th Cir.1981). 662 F.2d 685 cations Act] does not create a substantive federal upon limitation regu local land use City’s Reasons Denying SP- latory power, but is instead ‘centrally di and SP-150 U9 rected to rulings those that the Board is expected to make under Prior to state law conducting and local our substantial- review, ordinance deciding variances, evidence we special must address par ” exceptions and dispute ties’ respect like.’ Southwestern to the reasons Bell Systems, Todd, Mobile v. Inc. 244 undergirding deni two (1st Cir.2001) (citation F.3d 58 Limiting als. omit its consideration to the tran ted). Accordingly, we to the require scripts look of the City votes, Council’s voice ments set forth in the local ordi- U.S. argues that the votes on SP-149 of two the voice solely on the basis
denied SP-149
*12
pairs of reasons noted
only
mentioned
the
(1)
comply
failure to
SP-149’s
findings:
Cellular, these
According U.S.
above.
120-percent
Zoning Ordinance’s
with the
City
the
Council’s
alone constitute
reasons
(2) the availabil-
and
requirement;
setback
reject
We
“true” bases for the denials.
Similarly, with
sites.
ity of alternative
for several reasons.
argument
this
SP-150,
argues
U.S. Cellular
respect
(1)
First,
in the
the reasons set forth
all of
on
its denial
City
premised
that
Council
17, 2001,21
July
July
and
City’s letters of
sites, and
availability of alternative
the
20, 2001,
during
aired
the extensive
were
for co-
of towers suitable
the existence
City
on SP-149
proceedings the
conducted
location.
SP-150, which included consideration
and
hand, argues that
the other
City, on
Director,
Planning
Planning
the
by the
to its written denials
look
we should
Commission,
In
City
the
Council.22
and
SP-150, sent to U.S. Cellular
and
SP-149
words,
the
City
the
not create
other
did
20, 2001,
respec-
July
July
and
on
post
letters
set forth
its denial
reasons
set forth numerous
tively,
of which
both
fact,
in the
In
the reasons set forth
hoc.
in the
not
voice-vote
reasons
contained
same,
or substan-
City’s letters were
tran-
City
meeting
Council
portions
to,
forth
the reasons set
tially similar
scripts.
Packets,
Planning Di-
which
Agenda
very begin-
argument,
Daroga
U.S. Cellular
created at the
its
rector
advancing
members,
prior to the
during
ning
process,
of the
City
that
Council
*13
stated
the Council member who
turn was based on Planning
Da-
Director
initiated the
at
motion
the end of lengthy
roga’s findings set forth in
the
written and oral consideration. Fortu-
Packet.
nately,
City’s
the
letters,
denial
set
which
Second, the Zoning
specifical-
Ordinance
forth in writing
City’s
the
reasons for deni-
ly provides that “[a]ny
] to
decision!
al, remove the need for such speculation.
an application
placement,
for the
construc-
above,
Based on the
reject
we
U.S. Cel-
tion, modification of towers for cellular or
lular’s argument
that we should remove
personal
service,
communication
special-
from
scope
the
of our substantial-evidence
ized radio mobile service shall
conveyed
be
review the reasons set forth in
City’s
the
to the applicant in writing.”
Ar-
Broken
denial
17,
July
2001,
letters of
and July
row Zoning
VIII,
Ord.
§
art.
Thus,
18.16.
2001 and record evidence supporting those
local law identifies the written decision as
reasons.
the proper source for the
support-
reasons
denial,
ing the
Borough
see
Ho-Ho-
3. SP-U9
Kus,
197 F.3d at
and this court will not
U.S. Cellular raises two principal
assume that the City
in
acted
contraven-
points in contending that
the
Coun
tion of section 18.16’s self-imposed proce-
cil’s denial of SP-149 cannot withstand
requirement.
dural
First,
substantial-evidence review.
U.S.
Similarly, given the “writing” require-
argues
Cellular
that the City Council failed
ment contained in the Telecommunications
to apply the standards and criteria set
Act,
§
47
332(c)(7)(B)(iii),
U.S.C.
logic dic-
forth in the Zoning
Second,
Ordinance.
tates that we look to the required writing
U.S. Cellular contends that the reasons24
to determine the basis for
the
Coun-
set forth in
the
July
cil’s decision. As the First
sug-
Circuit
2001, letter were not
supported
sub
gested
Todd,
the purpose of section
stantial evidence. We consider each con
332(e)(7)(B)(iii)’s“writing” requirement
tention in turn.
to facilitate meaningful
judicial review.
(“[The]
With
the Telecommunications
“Nothing in
tion.
decision,
that
*15
City of Delafield,
gress alterna- proach. there are that experts prove to tower,” National proposed for a tive sites Cir.1998). (4th F.3d 431 155 Zoning Bd. Tower, v. Plainville LLC conclude foregoing,31 we Based on the (1st Cir.2002). 14, 24 F.3d 297 Appeals, evidence contained that “substantial reject district firmly Accordingly, we supported the written record” [the] ex- opinions “[t]he that court’s statement U.S.C. denial SP-149.32 Council’s officials about pressed 332(c)(7)(B)(iii). adequate existing loca- other existence ‘gener- nothing more than to tions amount 4. SP-150 adequate to which are concerns’ alized’ argu- advances similar evidence.” with substantial the record fill challenging ments I, In AT T Wire- at 12. & outset, At the we note of SP-150. denial PCS, Inc. v. less contention that U.S. Cellular’s Beach, dis- the Fourth Circuit Virginia apply did not the standards City Council argument: a similar missed forth in the Ordi- and criteria set sort, seeking those In all cases of this merit.33 wholly nance is without exhibits, ex- come armed with build will argu- reject U.S. Cellular’s Similarly, we telecom- [The perts, evaluations. that the Council’s denial of SP- ment by urging us provider], munications by substantial evi- supported 150 was not barrage predictable hold that such site, the dence. U.S. Cellular’s governments ap- mandates local property, was zoned Oneta Road South effectively demand prove applications, AA-1, transitional-zoning category. Un- always Act so as interpret that we Ordinance, “no der the new citizens; that nonexpert average, thwart land, as- which is may be commenced is, democracy. thwart The district zoning ... without ob- signed transitional opposition court dismissed citizen *16 zoning.” taining appropriate conventional Congress, re- concerns.’ ‘generalized VIII, art. Arrow Ord. authority Broken local over fusing to abolish con- services, Although City § Council had cat- 15.5. the zoning personal of wireless suitable, supporting or other towers that SP-149 did not Because we conclude 31. 18.13, meeting technologi- capable we of the comply and need structures with sections 15.5 see, e.g., applicant,” two bases advanced Tran- consider the other cal needs of the 18, 2001, 18.4 and Council under sections script June Broken Arrow the of 46; SP-150, 31, 36-37, Ordinance. Meeting at 18.14 Council on 18.12(b) (c), "prox- § pursuant to and the the court also concluded that 32. The district imity the tower to residential structures of violated 47 City Council’s denial SP-149 of adjacent lot boundaries” and residential 332(c)(7)(B)(i)(II), provides § which U.S.C. nearby adjacent and of the “nature uses prohibit governments "shall not or local see, e.g., Transcript properties,” of June prohibiting provision effect of of have Meeting Council Broken Arrow as U.S. personal wireless Insofar services.” 36; 18.12(a) SP-150, § pursuant to at argument advance this before did not Cellular (f), height design (he court, the district court erred in district tower, de- particular with reference those considering 47 U.S.C. have the of sign which effect characteristics 332(c)(7)(B)(i)(II). § obtrusiveness, eliminating reducing visual 18, 2001, see, 18.12, e.g., of June Broken Transcript accordance section Meeting on at following: Arrow members discussed 18.12(i), § there are 53-56. "whether ... pursuant to ditionally approved the South Oneta Road into a critically acclaimed picture motion of property for zoning conventional on Feb- name, the same with the then-little-known ruary U.S. Cellular does not con- Robert DeNiro playing one the two tend that zoning conventional had in fact protagonists and the equally-little-known been See “obtain[ed].”34 id. Michael Moriarty playing the other. Al- though the film’s
Further, subject matter was base- Council had ear- ball, larger provided theme the South marked keen in- Oneta Road property sights into the for A-l human zoning. 18.11(G), Under condition. section normally “towers are discouraged in A-l DeNiro’s role was that of unlettered ... Id., districts.” VIII, art. Georgia rustic Bruce Pearson —a rube 18.11(G). Where an applicant seeks a with the same quality of naivete that was permit to construct such disfavored ar- captured by Ring Lardner in such works eas, section requires 18.11 appli- Busker, Letters Me, Know You from cant “establish the elements of the applica- Al and Alibi Ike—whose life-threatening tion clear and convincing evidence.” affliction with Hodgkins disease was un- 18.11(G)’s Id. Despite section requirement teammates, known to his the team manag- “clear convincing” evidence in sup- er and owner. Only star pitcher Hen- port of the application, U.S. ig- ry Wiggin,1 played by Moriarty, knew nored the City Council’s request that the the fatal illness and Bruce’s deteriorat- company provide information on the feasi- ing condition—and he used his leverage as 100-foot, bility of camouflaged tower for key team’s man to force management, Thus, the SP-150 site. substantial evi- without his explaining reason, to keep dence supported Council’s denial (a Bruce relief catcher of limited ability) 18.13, under section provides: which “No on the team roster. new tower should be permitted by the City Bruce, hapless played by catcher Council, unless the applicant demonstrates DeNiro, the target of constant ragging Council’s reasonable satisfac- by his teammates because of his unworldli- tion that no existing tower or other struc- including their victimizing him as an ness— ture can accommodate applicant’s pro- invariable loser in their perpetual card posed Id., antennae.” § 18.13. game TEGWAR, no matter what cards When,
III. he held. in response Conclusion to the effort by the Moriarty character to him up, wise Based on the foregoing, we REVERSE *17 Bruce answered that he had no why idea grant district court’s of summary judg- every he lost perhaps just he was a I, ment time — in U.S. Cellular No. 01-CV-0518- bad card player Moriarty-DeNiro ex- E(M), and —the AFFIRM the district court’s change something went like this: grant of summary judgment in U.S. Cellu- “Don’t II, you know what EA(J). lar No. 01 TEGWAR stands CV 0550
for?” SHADUR, District Judge, dissenting: “No.” years
Some 30 ago the Mark Harris “It’s Exciting Game Any Without novel Bang the Drum Slowly made was Rules.”
34. For further point, discussion this knowing see Wiggin writer, that aspiring was an 36-38, pages supra. by referred to him nickname "Author.” mistakenly Bruce caught that as "Arthur” —so 1. One indicium of per- Bruce’s slowness of invariably he Moriarty addressed the charac- ception was that all of the players, other by ter that name. and of its two vote record of the Council’s doing dispute in a this all of
isWhat in SP- City of Bro- for turndown and the stated reasons between U.S. supposed all to after This is ken Arrow? 150: one), (albeit not dissenting a opinion an
be deny. I move to Mr. McCaleb: not be more it could review. But a movie second that going to Mr. Petrik: I’m in Bro- relevant, because the One, is reasons. there couple for with an TEGWAR Arrow has outdone ken close to it. There existing towers three anarchy: It egregious brand even more towers; there’s a cou- that’s cell is—and rules, but set prescribed in fact has very well that could of tv antennas ple has then conformed when U.S. Cellular from—from the—the wind load take prescribed meticulously every one of this; I there are better loca- think standards, response Arrow has the Broken tions for this tower. And you anyway.” lose “Too been bad— we have a motion Reynolds: Mr. So majority opinion has sanc- regrettably Any denial. other and a second for on the of lawlessness that level tioned Okay. We’ll call roll. discussion? No? City’s part. McCaleb? Heinrichs: Councilman Mr. is, to read the suggest, impossible I It Yes. Mr. McCaleb: rejected two as to U.S. Cellular’s record Thurman? Heinrichs: Mr. Councilman permits for special applications Thurman: Yes. Mr. tow- transmission of cellular construction rejec- that the Carter? being Mr. Heinrichs: ers without convinced Councilman foreordained, applications of those tion Mr. Yes. Carter: of U.S. Cellular’s satisfaction irrespective Mayor Heinrichs: Petrik? Mr. Vice by Bro- established of all of the standards Yes. Mr. Petrik: dealing with own ken Arrow’s ordinance any government as has to be true Just I necessary, But it subject. that law, by who vote such controlled those believe, through painstaking such a go must be viewed as governmental action (and why to demonstrate painful) exercise terms having only particular done in the so review should appellate of our the results marked out. they have So themselves by arrived at opposite of those be the too, of the vote the even more record terse rather than the majority: the affirmance the actual necessarily reflects SP-149 judgment court’s reversal of one district affirmative decision there: an City City’s appli- denial of rejected that had entirely a motion was based vote on rather cation reversal grounds: specified on two other district than the affirmance of the Petrik, second Carter to Motion applica- upholding court’s of the denial required as the setback suffice, I it should tion SP-150. Instead growth and there will inhibit residential think, fatal flaws each of point two available. are alternate locations permit denials. Broken Arrow’s *18 not do—as was the ease simply It will with, remembered begin To must be it an administra- here in both instances-—for it Council that reached that was the nondecisionmaker, employee, a tive here, City’s not the each of the decisions Director, inject other City’s Planning to input people provided potential who staff why Coun- (most post-hoc reasons as to pre-decision those decisions for both conclu- Commission) the same and, might cil have reached Planning recently by the sions, did that the Council itself but (by the distressingly, post-decision more Director). In- in decision. not articulate And here is the entire vote—its deed, any when beyond administrative decision- actual decision. In this in- —the presented maker a host possible with stance the written record of what the reasons for a decision but then reaching actually decided is in embodied limits its own in support statement transcripts of its proceedings and meeting announced decision to fewer than all of minutes that I have quoted earlier. possibilities, those it distorts the decisional those terms the majority’s bulk process seriously operate prem- to extended rationale away, falls and what ise that the apply omitted reasons as well. little speaks to the remains —what two rea- As a Supreme unanimous United States sons advanced in each of taught Court has v. FTC Indiana Fed- actual votes—does begin not even ap- Dentists, 447, 455, eration 476 U.S. 106 proach statutory standard. (1986): 445 S.Ct. 90 L.Ed.2d occasion, There is no I
Once the
because
do not
par-
has chosen a
court,
speak
ticular
for
legal rationale for
holding prac-
just
itemize here
unfair, however,
tice to be
prin-
familiar
how unsupported the City Council’s own
ciples of administrative law
that
dictate
specified reasons for its decisions
were
its decision must stand or fall on that
any relevant factual sense.
it
Suffice
basis, and a reviewing
court
say that
Council’s contemporane-
consider other
why
practice
reasons
(not
ously stated reasons
the other post-
might be deemed unfair.
rationalizations)
hoc
for its two turndown
Accord, rejecting “post hoc rationalizations
simply
votes
satisfy
do not
the “substantial
(in
agency
for
action”
prof-
instance
requirement
evidence”
of the Telecommu-
by
fered after the
appellate
fact
counsel
Act,
nications
a conclusion that has been
than,
here,
rather
by
administrative
amply
by
demonstrated
U.S. Cellular in
staffers), Motor Vehicle
Ass’n v.
Mfrs.
each
so,
instance. And
being
Co.,
State Farm Mut.
Ins.
Auto.
463 U.S.
reasons that have
by
been found sufficient
103 S.Ct.
taining appropriate Plaintiff-Appellant, added). that ordinance What (emphasis that would say permit is that no does v. obtained use must be allow such before and New MOTOR COMPANY FORD sought. zoning change is
necessary America, Inc., Holland North Defendants-Appellees. agreed, specifically Here U.S. special each obtaining to a condition No. 02-6284. required platting all pursue to permit, use Appeals, United States Court so that no actual zoning changes Tenth Circuit. for use of the permit —no until the commenced a tower—could be Aug. place. And
proper or- eminently an reasonable
represented events, clearly it would make
dering of for required to be
no sense expense trouble and go ahead with the it that it seeking until knew rezoning desired for the properties
could use
purposes. sum, the Tele- Congress has enacted purpose: a dual
communications Act for telephone of wireless growth
facilitate the basis, at the while
service on national local control—sub- preserving
same time the sit-
ject specified restrictions —over majority has of towers.
ing What submit, do, I
permitted Broken Arrow prescribed
to subvert careful balance Accordingly, respectfully I
by Congress.
dissent. notes any prop- caveat, heights feet on change in excess of 50 although with it does not 21. One appear pur- erty single-family does residential in this case. It for a the result used had, 18.4; July id., VIII, City prior to its § that the letter, U.S. pose, art. and see VIII, article sec- specifically discussed not meet the proposed tower did Cellular’s Ordinance, which tion 18.4 requirements, see Ordinance’s setback prohibits the of telecommunica- construction VIII, id., § art. 18.14. heights excess of 50 feet tions towers with we noted earlier that As for single-fami- property actually used for any for four rea- request denied the Council said, both the ly purposes. That residential First, proposed was SP-150’s site sons. Council AA-1 at the time of U.S. Cellular’s zoned length the fact that the East discussed at transitional-zoning single- application, which is a property was earmarked for Avenue law, impediment family category, applicable use and no new residential and under develop- might place on SP-149 residential appro- may commence on land until use property and the ment on the East Avenue zoning See priate conventional is obtained. surrounding' area. Second, id., VIII, § U.S. 15.5. Cellular’s art. conditionally approved proposed was for site earlier, set forth weAs discussed discouraged zoning, applicable A-l law (1) U.S. denial of four reasons its SP-149: for required in such areas tower construction AR-1, a site was zoned proposed Cellular’s appli- convincing clear and evidence appli- transitional-zoning category, and under area. need to construct such an cant’s within law, no new commence cable Third, id., VIII, 18.11(G). § other See art. appropriate conventional land until U.S. Cellular sites were available to suitable obtained, Zoning Ord. art. see Broken Arrow proposed tower. for telecommunications 15.5; VIII, § other suitable existed sites VIII, id., Finally, § U.S. Cellu- art. 18.13. See for U.S. telecommunica- Cellular’s response to the provided no materials in lar tower, specifically, an tions request that U.S. Cellular con- pro- U.S. mile north of Cellular’s one-half camouflaged a 100-foot tower for sider site, id.., 18.13; (3) posed see site, despite the fact proposed site was Cellular’s earmarked use, provided a month to Council applicable single-family residential request. comply this prohibited towers law telecommunications Commission’s initial consideration of SP- ed upon specific motion, seconded, All and SP-150. mem- agree would to that which was not express- bers copies received of the respective ly voted upon.” agree. We But it would prior Packets hearings on be similarly assume, unfair to as U.S. Cel- Further, SP-149 and SP-150.23 lular to, invites us each noted in its July letter that its member who voted to U.S. Cellular’s denial based, in part, on “the Planning application necessarily adopted only those recommendation,” Commission’s which in reasons
Notes
notes
Cellular
U.S.
Council’s
applying
from
local
Act forbids
authorities
plat-
agreed
pursue
to
expressly
“[it]
nondiscriminatory standards
general and
to
as
condition
zoning change
ting and
Aegert-
zoning codes.’*
from their
derived
permit.”
special
use
granting 886, 891
Delafield,
F.3d
v.
er
in the
“nothing
argues that
Cellular
U.S.
(7th Cir.1999).
conclude
Accordingly, we
prohibited]
[the
[Zoning Ordinance]
supported the
evidence
that substantial
per-
special
use
granting
from]
Council
15.5.
based on section
denial
proper
acquiring the
subject
mit
to
disagree.
We
platting.”
result, U.S.
this
avoid
attempt
an
to
sense
argues
makes
“[i]t
no
Cellular
of article
plain language
Under
time
expend the
to
U.S.
require
com-
15.5,
use
be
“[n]o new
section
platting
obtain the
and resources
assigned transi-
menced
land which
on
2001,
18,
Broken Arrow
2001,
27.Transcript
18,
of June
Arrow
Transcript
Broken
25.
of June
8-15, 19,
14-15,
SP-149,
SP-149,
Meeting
at
on
Meeting
at
Council
22,
24-25.
24.
Arrow
Transcript
June
Broken
Meeting
at 16.
Subject
rezoning
Property
of the
it
U.S. Cellular offered no substantive evi-
before
special
knows whether it can obtain a
concerning
dence
the feasibility of co-locat-
permit
place
tower on the property.”
ing on
County
Line Road tower.28 The
Cellular,
agreed
Even if we
with U.S.
this
only evidence in the record concerning the
conclusion;
would not alter our
long
so
feasibility
this site
consists
follow-
the municipality’s
grounded
decision is
ing:
statements before the Planning
local
law and supported
substantial evi-
Doyle Groat,
Commission from
a U.S. Cel-
dence,
332(c)(7)(B)(iii)
47 U.S.C.
is satis-
lular engineer;29 and
statements be-
point,
fied. On this
the Seventh Circuit’s
fore both the Planning Commission and
observation is instructive:
Coutant,
Council from Kevin
may disagree
Congress’s
Some
de- Cellular’s attorney, suggesting the inade-
cision to
so much
leave
authority
quacy of the site.30 U.S. Cellular offered
governments
hands
and local
state
to no evidence to substantiate Mr. Groat’s or
affect
placement
physical
in- Mr.
Thus,
Coutant’s statements.
substan-
frastructure of an important part of the
tial evidence supported the City Council’s
nation’s
evolving telecommunications
denial based on
Todd,
section 18.13. Cf.
network.
that is what it
But
did when it
(“For