In my previous post concerning the District Court’s decision in Industrial Tower and Wireless, LLC v. Haddad (“ITW v. Haddad“), 2015 WL 2365560 (D. Mass. 2015), I discussed the decision as fitting within a small, but significant, line of cases requiring local boards to base their denial decisions on the specific criteria of the local bylaw. Another noteworthy aspect of ITW v. Haddad is that it is one of the first trial-level decisions to apply the Supreme Court’s decision in T-Mobile South, LLC v. City of Roswell, Ga., 135 S. Ct. 808 (2015) (“City of Roswell“).
As set forth in the prior post, the so-called “substantial evidence” clause of the Federal Telecommunications Act of 1996 (the “TCA” / “Act”), codified at 47 U.S.C. § 332(c)(7)(B)(iii), requires that “[a]ny 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.” In City of Roswell, the Court had to determine the scope of the “in writing” requirement under § 332(c)(7)(B)(iii): Does this standard require reasons for a denial decision, and do such reasons need to be in the written decision itself?
In 2001, the First Circuit Court of Appeals answered these questions for this jurisdiction. See Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51 (1st Cir. 2001). In Todd, the court held that § 332(c)(7)(B)(iii) does not require “formal findings of fact and conclusions of law.” Id., at 59. However, the court opined that
[o]n the other hand, permitting local boards to issue written denials that give no reasons for a decision would frustrate meaningful judicial review, even where the written record may offer some guidance as to the board’s rationale. A written record can create difficulties in determining the rationale behind a board’s decision, particularly when that record reflects arguments put forth by individual members rather than a statement of the reasons that commanded the support of a majority of the board. Even where the record reflects unmistakably the Board’s reasons for denying a permit, allowing the written record to serve as the writing would contradict the language of the Act. The TCA distinguishes between a written denial and a written record, thus indicating that the record cannot be a substitute for a separate denial.
Id., at 60 (citations omitted). Accordingly, the court held that “the TCA requires local boards to issue a written denial separate from the written record. That written denial must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.” Id.
In the intervening years, some circuit courts followed the approach of the Todd court. See New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir. 2002); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 722 (9th Cir. 2005). Others took a different approach. The Fourth Circuit, for example, held that merely stamping the word “DENIED” on an application complied with § 332(c)(7)(B)(iii)’s “in writing” requirement. See AT & T Wireless, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423, 428-429 (4th Cir. 1998). The Supreme Court, thus, granted certiorari in City of Roswell to resolve this circuit split.
In City of Roswell, the Court, Justice, Sotomayor writing for the six-justice majority, held that (1), yes, a municipality must provide reasons, but (2) no, those reasons need not be in the written decision. On the first question, Justice Sotomayor reasoned that “[i]n order to determine whether a locality’s denial was supported by substantial evidence, as Congress directed, courts must be able to identify the reason or reasons why the locality denied the application.” Id., at 814. Indeed, she noted that there would be no way to determine whether a locality had violated other substantive provisions of the TCA, prohibiting discrimination against carriers and basing local decisions on the health effects of radiofrequency signals, if no reasons are given. See id. Moreover, she confirmed that the use of “[t]he statutory phrase ‘substantial evidence'” was a short hand under administrative law for “how ‘an administrative record is to be judged by a reviewing court.'” Id., at 815, quoting United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963). Thus, “[b]y employing the term ‘substantial evidence,’ Congress . . . invoked, among other things, our recognition that ‘the orderly functioning of the process of [substantial-evidence] review requires that the grounds upon which the administrative agency acted be clearly disclosed,’ and that ‘courts cannot exercise their duty of [substantial-evidence] review unless they are advised of the considerations underlying the action under review.'” Id., quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943). Accordingly, on the first question, the Court held as follows:
In short, the statutory text and structure, and the concepts that Congress imported into the statutory framework, all point clearly toward the conclusion that localities must provide reasons when they deny cell phone tower siting applications. We stress, however, that these reasons need not be elaborate or even sophisticated, but rather, as discussed below, simply clear enough to enable judicial review.
City of Roswell, supra.
On the second question, Justice Sotomayor reasoned that “our conclusion that the reasons need not appear in a denial letter follows from the statutory text. Other than providing that a locality’s reasons must be given in writing, nothing in that text imposes any requirement that the reasons be given in any particular form.” Id., at 815-816. As she further noted,
[t]he Act’s saving clause makes clear that, other than the enumerated limitations imposed on local governments by the statute itself, ‘nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.’ Given this language, and the system of ‘cooperative federalism’ on which the Act is premised, we understand the enumerated limitations to set out an exclusive list. So while the text and structure of the Act render it inescapable that localities must provide reasons in writing when they deny applications, we can locate in the Act no command-either explicit or implicit-that localities must provide those reasons in a specific document.
Id., at 816 (citations omitted). Though the reasons need not be in the written decision, the Court “hasten[ed] to add that a locality cannot stymie or burden the judicial review contemplated by the statute by delaying the release of its reasons for a substantial time after it conveys its written denial.” Id. “The statute provides that an entity adversely affected by a locality’s decision may seek judicial review within 30 days of the decision. Because an entity may not be able to make a considered decision whether to seek judicial review without knowing the reasons for the denial of its application, and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.” Id. (Citation omitted).
Accordingly, the Court held that “the Act requires localities to provide reasons when they deny cell phone tower siting applications, but that the Act does not require localities to provide those reasons in written denial letters or notices themselves. A locality may satisfy its statutory obligations if it states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial.” City of Roswell, supra, at 818. In so doing, the Court abrogated inter alia Todd, supra.
Therefore, ITW v. Haddad is one of only a handful of decisions, and the first in this circuit, to apply this standard, newly articulated by the Supreme Court. The Falmouth ZBA’s decision in ITW v. Haddad embodied a split two-two vote, effectively denying ITW’s application for a special permit, and was comprised entirely of the minutes of the proceedings on that application, without any independent statement of reasons for denial. See id., at *7 (“ZBA’s Decision . . . does not contain any findings or a statement of reasons for its denial”).
ITW, for the purposes of its summary judgment motion, stipulated that, despite the relative lack of clarity, there was a sufficient explanation of the no-voting members’ reasons for their no votes in the minutes and transcripts of the hearings before the board. However, ITW maintained that those reasons had to be found only in the closed-meeting deliberations after the open, public hearing had been formally closed. In ITW v. Haddad, Judge Burroughs agreed.
On review, the Town argued that no-voting members had denied ITW’s application based on two factors under the local bylaw. Rejecting this argument, Judge Burroughs held that, while “several neighborhood residents spoke in opposition to ITW’s proposal” based on “the visual impact of the project”, “these concerns were not the reason why the two no-voting Board members denied ITW’s application. Rather, when articulating their reasons for voting against ITW, the two no-voting members cited only ‘effective prohibition’ issues under the TCA.” Id., at *12. In a footnote, Judge Burroughs expanded on this issue as follows:
the Court rejects Defendants’ suggestion that concerns for visual impact and the suitability of the site were additional reasons for denying ITW’s application, because this is simply not supported by the meeting minutes appended to the Board’s Decision. The two no-voting Board members were given an opportunity to state their reasons for voting against the application in the final Board meeting, and they did not mention concerns relating to visual impact or the suitability of the Proposed Site. Furthermore, the fact that issues of visual impact may have been discussed over the course of public hearings does not mean that this was an additional reason for the Board’s denial of the application. During the public hearings, constituents and Board members raised a wide variety of concerns, ranging from possible effects on birds nesting in the towers, to potential health effects from radiation. Notably, Defendants do not argue that these concerns were additional reasons for denying ITW’s application. Accordingly, the Court declines to find that the visual impact of the project, or the suitability of the site for the proposed use, were reasons for the denial, simply because they were previously discussed at public hearings. For purposes of judicial review, the ZBA’s reasons for denying the application must be limited to the reasons stated by the voting members during the Board meeting, and memorialized in the meeting minutes, which is the only written statement of reasons that the ZBA provided. Otherwise, the Court would be required to scour the record for every stray comment or observation supporting a Board’s decision. This would be at odds with the framework of judicial review under the TCA.
Id., at *12 n. 14 (citations omitted). On this score, Judge Burroughs commented that “the ZBA’s failure to include an official statement of reasons for denying ITW’s application has made this analysis substantially more challenging.” Id. The District Court, thus, experienced, first hand, the very issues that the Todd court wished to avoid by requiring that there be a plain statement of reasons in the denial decision, separate and apart from the minutes and record.
As suggested by Judge Burroughs, there has to be a limiting principle to elude the “scour[ing]” that she ominously portended. That limiting principle must be that, when the formal written decision lacks express reasons, only the statements of board members during the closed-meeting deliberations may qualify as the reasons for denial, and not questions or comments made during the open meeting process. Otherwise, the task of District Court judges will be nearly impossible under the City of Roswell standard. ITW v. Haddad notably recognizes this reality.
Written by Nicholas P. Shapiro, Esq., on behalf of Jeffrey T. Angley, P.C.
Copyright (c) 2011-2015 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.