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FMG Law Blog Line

US Supreme Court Rules TCA Requires Timely Written Reasons for Denial of a Cell Tower Permit

Posted on: January 16th, 2015

By: Kevin Stone and Dana Maine

 

Earlier this week, the United States Supreme Court, in T-Mobile South, LLC v. City of Roswell, Georgia, clarified the rules for what a local government must do when it denies an application for a telecommunications tower.  In an exercise of statutory interpretation, the Supreme Court concluded that the federal Telecommunications Act requires local governments to provide written reasons when they deny these applications.  Roswell met that requirement by relying on the detailed minutes of the hearing at which the decision was made.  The Court cautioned, however, that although not required, it might be more beneficial to provide the rationale in a separate statement, which would provide a clear explanation of the rationale and avoid the risk that a reviewing court would misinterpret the minutes.  In the end, the reasons need not be elaborate or sophisticated; they need only be clear enough to enable judicial review.

The fatal blow to Roswell was that it waited too long (26 days) after issuing its denial to provide or make available its written rationale.  The Act allows an entity whose application was denied to seek judicial review within 30 days of the denial.  In order to ensure that entities whose applications were denied have the full 30-day window to make a decision as to whether to seek judicial review, the Court held that a local government must provide or make available its written reasons at essentially the same time as it communicates its denial.  The Court explained that the timeliness requirement would not unduly burden local governments because they have between 90 and 150 days, depending on the circumstances, to issue denials.  Thus, if the government cannot promptly provide its reasons, it can “delay its denial within this 90- or 150- day window and instead release it along with its reasons once those reasons are ready.”  Local governments will need to work with their attorneys to decide how to not prejudge an application on which the governing body must vote but be prepared to provide a written document at the same time as the vote.

The bottom line is that when a local government denies an application covered by the Act, the government should, at essentially the same time as it communicates the denial, provide or make available written reasons that are clear enough to enable judicial review.

 

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