T-Mobile South, LLC v. City of Roswell – Contemporaneous Reasons Needed for Denying Cell Towers

By: Andrew McRoberts, Editor. This was posted Thursday, January 15th, 2015

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By Andrew R. McRoberts and Cullen D. Seltzer

On January 14, 2014, the United States Supreme Court issued its opinion in T-Mobile South, LLC v. City of Roswell.

At issue was the breadth of the requirement in 47 U.S.C. § 332(c)(7)(B)(iii) of the Telecommunications Act of 1996 (the “Act”), which provides that a locality’s denial of an application to build a cell phone tower “shall be in writing and supported by substantial evidence contained in a written record.” A 6-3 Supreme Court, Justice Sotomayor writing for the majority, said that the statutory language requires localities to provide the reasons for such denials in writing.  Consistent with 4th Circuit opinions, the Court held that those reasons do not have to appear in the written denial letter as long as they appear in some other written record and are sufficiently clear.  The Court also held the reasons must be provided or made accessible to the applicant essentially contemporaneously with the written denial notice.

The Court’s ruling was predicated on the Act’s requirement that a federal court’s review of whether a cell phone permit was permissibly denied requires the reviewing court to assess whether there was “substantial evidence” in the record to support the denial.  Without a written explanation of the reasons for the denial, a reviewing court is unable to make that determination.  Here, T-Mobile was refused by the City of Roswell (Georgia, not the more mysterious and famous one in New Mexico) a permit to build a cell phone tower on more than two acres of undeveloped land.  Because T-Mobile was required to appeal the denial to federal court within 30 days of the denial, Roswell’s publication of its City Council minutes (which contained the only written explanation for the denial) 26 days after the denial was too late for T-Mobile to reasonably be able to exercise its appellate rights.  That T-Mobile had ordered a transcript, at its own expense, of the City Council hearing where its permit application was denied was insufficient written explanation from the locality.

Chief Justice Roberts, in dissent with Justice Ginsburg and Thomas (in part), urged the Act’s requirement of “substantial evidence” review could be fulfilled by simply putting the locality to the burden of explaining its reasons in the course of an appeal.   That approach, had it been permitted by the ruling, would have been consistent with the ability of a legislative body in defending a substantive due process challenge to be able to identify reasons after the fact, not only ones provably considered by the legislative body in making a legislative decision.

Justice Thomas separately dissented to note his objection to the majority’s imposition of a timing requirement for the locality’s written explanation. The new “contemporaneous” requirement does seem new, and is not found in the statute.  However, it does provide local governments some flexibility in when the reasons need to be identified, as opposed to — for example — requiring notice of reasons to be given in the midst of a contentious legislative process.

A comparison between this opinion and the 4th Circuit case law from 15+ years ago will be in order.  The leading case from the early years of the Act was AT&T Wireless PCS, Inc. v. City Council of the City of Virginia Beach, 155 F.3d 423, 429-30 (4th Cir. 1998), in which the 4th Circuit held that written reasons were required and that minutes could suffice but had to actually include evidence supportive of those reasons.  The City of Roswell case seems largely consistent with the AT&T Wireless case from 1998.  Both require actual reasons and minutes to be provided to support those reasons.  But, to the benefit of local governments, the City of Roswell opinion goes further to say that the reasons don’t have to be in the written denial, but that the reasons must be provided in a timely fashion to allow a challenge if appropriate.

The SCOTUS blog had this to say in conclusion of its analysis:  “The Justices, though divided, seem to agree that the T-Mobile South decision will have limited impact. Local governments can comply with the decision by waiting to issue denials of cell tower requests until they have finalized their meeting minutes (or any other written record with discernible reasons). What is most interesting about the decision is the Court’s still-developing approach to bridging administrative law and federalism – and the fact that even when all Justices pledge allegiance to statutory text, four distinctive opinions can emerge.”  Read more about the Court’s holding on the SCOTUS blog here, and further analysis of the opinion from the SCOTUS blog here.

Our take away for local governments is a narrow one for the Act – when denying a cell phone permit, the locality must provide, in a timely manner, a written explanation why the permit is being denied.  The broader lesson is that a majority of the Court was persuaded that a reasonable locality is one that explains its interactions with citizens in a way that is easy to understand, readily accessible, and made in sufficient time for citizens to figure out what their obligations and rights are.  That’s probably pretty good advice generally.

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