Don’t Be Caught in Roswell – Municipal Guide to Denying Cell Phone Tower Applications

Cell phone towers.  Some say they’re profitable.  Others say they’re an eyesore.  As a member of Council, you are often stuck in the middle of the debate with an obligation to approve or deny an application to build a cell tower within your city.  What you may not know is that there’s a pesky statute from 1996 that requires you to follow certain procedures.  Are you prepared to follow the Telecommunications Act of 1996, whatever you decide about the application?  If you’re not, I think I can help.

But before I do that, let me tell you about a case that the United States Supreme Court decided last month.  The case was named T-Mobile South, LLC v. City of Roswell because it involved a telecommunications company, T-Mobile, and a municipality, the City of Roswell, Georgia.

Just the Facts

In Roswell, the City Council held a public hearing to decide whether to approve T-Mobile’s application for a cell phone tower.  During the hearing, all of the Council members voiced concerns about the application and then, by motion, unanimously denied the application.  Afterward, Council followed up by sending a denial letter to T-Mobile a couple days later.  In that letter, Council did not state the reasons for the denial; however, they did inform T-Mobile how it could access the meeting minutes for the hearing.  Last, Council published its written minutes 26 days later.

Just the Holding

When denying applications to place, construct, or modify cell towers, the United States Supreme Court held that a city’s denial must “be in writing and supported by substantial evidence contained in a written record.”  In addition, the highest court in the land said that written reasons: (A) must be provided to the applicant, (B) composed with sufficient clarity to allow for courts to review them, and (C) must be issued “essentially contemporaneously” with the denial.

The Supreme Court did allow for some flexibility by stating that the reasons for denying cell tower applications do not have to be included in the actual denial letter, and could be provided in the form of some other written record (like Council’s minutes).  In other words, if the Roswell City Council had sent a copy of its minutes to T-Mobile at the same time it sent the denial letter, the City would not have violated the Telecommunications Act of 1996.

Two additional observations from the Supreme Court’s decision should be helpful.  First, the Court opined that denial letters should be provided to applicants within a reasonable time period, usually between 90-150 days.  Second, the most important aspect of the denial is the reasoning for denying the application.  So, while cities can take their time (90-150 days) to respond to the application, they should articulate the reasons for a denial.  That means if the meeting minutes are not sufficient to outline the justifications for denying the application, then a separate written explanation should be provided to the denied applicant.

Tips for Ohio Cities

  1. When you’re reviewing cell tower applications, you should know that your zoning code isn’t the only body of law that applies.
  2. When you’re thinking about denying a cell tower application, you should be prepared to provide justifications for doing so.  The denial has to be supported by substantial evidence.
  3. If you’re going to deny a cell tower application, respond within a reasonable time and provide a written articulation of your reasons “essentially contemporaneously” with the denial.

As you may know, every cell tower application and applicant is different, so please do not hesitate to contact any one of our experienced local government attorneys at Wood and Lamping, LLP. You may also direct your questions to me by calling my direct line at (513) 852-6071 or sending me an email.

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