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Thursday, May 3, 2012

Municipalities Can Win Appeals from the Denial of Cellular Zoning Decisions!

On April 24, 2012, the United States District Court for the Northern District of Illinois granted summary judgment for the Village of Huntley against SBA Towers, which had sought a special use and variance to erect a 175 foot tall monopole antenna.  SBA Towers II LLC v. Village of Huntley, No. 11 C 4322 (April 24, 2012).  Relying largely on Helcher v. Dearborn County, 595 F.3d 719 (7th Cir. 2010), the Court found that the Village satisfied the dual requirements of 47 U.S.C §332(c)(7)(B)(iii) for a denial to be in writing and based on substantial evidence contained in a written record.  Below I will review each part of the Court’s decision.

First, the Court’s opinion is important for clarifying what can be considered a written decision.  In this case, the Court found that the mere minutes of the Village Board meeting where the denial was announced contained a, “sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.”  Caution should be taken before relying too heavily on this precedent, however, since each community’s practice of recording minutes can vary greatly.  A simple recitation of the matter under consideration and recording of the vote would not meet the standard described by the Court.  The document which describes the denial, regardless of what form it takes, is “adequate if it provides an explanation that allows the court, in combination with the written record, to determine if the decision is supported by substantial evidence.”

Next, in weighing whether the Village’s decision was supported by substantial evidence, the Court notably compares the normal standard of review for decisions denying variances to the enhanced standard applicable to cellular zoning decisions:

Decisions to grant or deny a variance are considered legislative actions under Illinois law, 65 ILCS 5/11-13-25 (a), and, under Illinois law, “are subject only to rational basis review.” The [Telecommunications] Act alters this standard for local government decisions denying variances to construct cell towers by requiring the decision to be supported by substantial evidence in a written record.  The substantial evidence standard is still highly deferential and “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion…The party seeking to overturn the local zoning board’s decision has the burden of proving that the decision is not supported by substantial evidence.” The substantial evidence standard is essentially the clear error standard so the relevant question is whether defendant clearly erred in refusing to grant the requested variances to allow construction of the [monopole]. (Internal citations omitted)

A practical tip from this case is found where the Court held the municipality need not present any evidence or testimony in opposition to the petition, but is free to use evidence presented by the applicant to justify a denial.  This serves to emphasize the factual burden your ordinances should create for applications to locate cellular communication facilities.  Rather than spending public resources finding reasons to deny an application, requiring a zoning applicant to provide a comprehensive record can help in identifying am objective basis for denial rather than qualitative, anecdotal testimony.

A final note on the case emphasizes that the decision is limited to the question of what constitutes a “written decision” and what qualifies as “substantial evidence.”  SBA Towers chose not to appeal based on the test for whether the decision has “the effect of prohibiting the provision of personal wireless services” in violation of 47 U.S.C §332(c)(7)(B)(i).  Most cellular zoning applicants will appeal local decisions on every ground available under law.  Nonetheless, this case provides helpful guidance, from a legal and practical perspective, for responding to cellular zoning applications.

Post authored by Adam Simon, Ancel Glink.


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