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Tuesday, February 09, 2010

Ind. Decisions - One Indiana opinion today from the 7th Circuit

In Dan Helcher, et al. v. Dearborn County Board of Zoning Appeals (SD Ind., Barker), a 36-page opinion, Judge Rovner writes:

Cincinnati Bell Wireless, LLC (“Bell”) applied for a conditional use permit to construct a wireless communication facility (essentially, a cellphone tower) on property owned by Dan and Merry Helcher in Dearborn County, Indiana. When the local Board of Zoning Appeals (“Zoning Board” or “Board”) denied the application, Bell sued the Board and its members for violating various provisions of the Telecommunications Act of 1996, 47 U.S.C. § 332(c). The district court granted summary judgment in favor of the defendants, and Bell appeals. We affirm. * * *

After the testimony, Zoning Board member Patricia Baker moved to deny the application for a special use permit. By a vote of three to one, the Zoning Board denied the application. At the May 2006 meeting of the Zoning Board, many disputes arose during the process to approve the minutes of the March meeting. Members of the Zoning Board, representatives of Bell and the Helchers, and objecting landowners all suggested numerous revisions to the minutes. Unable to agree on many points, the Board tabled approval of the minutes until the next meeting. In early June 2006, the plaintiffs asked the Board not to approve the revised minutes and also requested that the Board reconsider its decision to deny the permit application. At the June meeting, the Board approved the minutes as revised (“Minutes”) and denied the plaintiffs’ request to reconsider the denial of the permit application.

The next month, Bell and the Helchers filed a complaint against the Board and its individual members, alleging several violations of the Telecommunications Act of 1996, 47 U.S.C. § 332(c) (the “Act”). Count I alleged that the Board’s decision was not based on substantial evidence contained in a written record, as required by 47 U.S.C. § 332(c)(7)(B)(iii). Count II asserted that the approved Minutes of the March 14, 2006 Zoning Board meeting did not constitute a sufficient written decision as required by 47 U.S.C. § 332(c)(7)(B)(iii). In Count III, the plaintiffs contended that the Zoning Board’s decision unreasonably discriminated against Bell, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(I). Count IV maintained that the Zoning Board’s decision had the effect of denying the provision of wireless communication services, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). Counts V though IX, which are not at issue in this appeal, alleged violations of the Constitution and the civil rights of the applicants.

The district court granted the defendants’ motion for partial summary judgment on the first four counts of the complaint. Helcher v. Dearborn County, 500 F.Supp.2d 1100 (S.D. Ind. 2007). The court rejected the plaintiffs’ claim that the Zoning Board Minutes were an inaccurate recording of what went on during the meeting and that the Minutes were not adequate to meet the Act’s requirement that the decision be “in writing.” The court found that a written decision was adequate so long as it informed the applicant of the local government’s decision denying the application. In this instance, the court found, the meeting Minutes fulfilled this requirement because the Minutes enabled the court to efficiently judge the Board’s findings and conclusions against the record. The court also noted that the Minutes supplied the reasons underlying the Zoning Board’s decision by noting the sections of the Ordinance which the applicants failed to satisfy. The court found that the Minutes allowed for meaningful judicial review of the decision, and that no more was required by the Telecommunications Act. The court also found that the Zoning Board’s decision was supported by substantial evidence, that the denial of the permit did not effectively prohibit the provision of wireless service, and that the Zoning Board did not unreasonably discriminate among wireless service providers. Bell appeals. * * *

We proceed then to the merits of the appeal.


The Act 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.” 47 U.S.C. § 332(c)(7)(B)(iii). Bell and the Helchers contend that the Zoning Board’s decision does not comply with the Act’s requirement that the decision must be “in writing.” What is necessary for an adequate writing under the Telecommunications Act is an issue of first impression in our circuit.[3] There are differing views among the circuits as to what constitutes an adequate writing. * * *

We join the First, Sixth and Ninth Circuits, the majority of the courts that have reached this issue. The “in writing” requirement is met so long as the written decision contains 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. * * *

On the threshold question of whether the Minutes met the “in writing” requirement, we conclude that the Minutes met the standard we set forth above.

[3] Although the Seventh Circuit has yet to rule on the “in writing” requirement, our own Judge Cudahy considered the question when sitting by designation on the Ninth Circuit. See MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 721-23 (9th Cir. 2005) (Cudahy, J., writing for the panel). We are greatly aided by his analysis.

Posted by Marcia Oddi on February 9, 2010 12:15 PM
Posted to Ind. (7th Cir.) Decisions