Permit Denial for Wireless Tower Upheld

determination is a final decision (and thus appealable both the applicants and by the residents to the zoning quiring complaining wireless carriers to demonstrate that united states[.]" the parties' agreement that "a judicial conclude that the board's decision rejecting the permit height of the tower would be adequate even though a 220- being no just cause for delay in its entry." r. 49, at 1. information submitted by the applicant at the meeting. the pole); omnipoint, 430 f.3d at 534 (holding that a tional calculations, assessments, and reports. bell pro- 342 f.3d 818, 830 (7th cir. 2003). we apply the same test ("bell") applied for a conditional use permit to construct of neighboring property); metropcs, 400 f.3d at 723 (...continued)5 including a visual impact assessment that analyzed the vote only to break a tie. the motion passed and the act. bell contends that the board's denial of its permit complete and competitive coverage there exists no tower would provide the desired coverage on jamison proved. ebelhar opined that the applicants had met the (continued...) decision as to each of these provisions. failure to satisfy section 1514 of the ordinance demon- rejecting a tower for aesthetic reasons); t-mobile usa, inc. estate appraiser testified that the tower would have a plaint against the board and its individual members, strated that the applicants had not met this provision. that accommodates the rf engineering requirements tower would impede the development and improvement that applied for a permit to build a new wireless tower the general vicinity and shall not change the essential cribing the application). in the latter case, the fourth tion did not comply with article 3, section 315(b). board (2) through (7) above. as the district court noted, the6 scape of forests and farms. the tower is not in any way zoned residential. r. 23, ex. 2, at 1032. the helchers' among the circuits as to what constitutes an adequate of the constitution and the civil rights of the applicants. cally because of the natural views, provided the zoning defendants to waive any statute of limitations defense munity, and stated that the residents' objections demon- standard is not unlike our circuit rule 50, which the fear of adverse health effects of electromagnetic detrimental impact on surrounding residential property, 50 requires remand. see united states v. forman, 553 f.3d 585, evidence contained in a written record." 47 u.s.c. the permit. the act provides: incomplete on its face because the property owners of the proposed tower, a report on the aesthetic values certification on the face of the application. she asserted business; (7) on property zoned restricted business; decision violates the act's anti-prohibition clause is a of the ordinance. the zoning board also considered a borhood placement is more offensive to the county's create the mental discipline that an obligation to state dan helcher, et al., or structures. reinstate counts v through ix after the appeal. thus, of these preferred categories of zoned property: the parties' rights and liabilities." fed. r. civ. p. 54(b). eliminate the need to comply with the federal aviation radiation from the towers, a local government may con- ported statements on appeal. bell characterizes its writing" requirement, our own judge cudahy considered the 47 u.s.c. � 332(c)(7)(b). we have yet to address what is indicating surrounding homes and the residential cultural and allows non-agricultural uses (including judgment must be grounded in the specifics of the case). section 315(d) similarly empowers the board to issue application. ebelhar reported the findings of his review voicestream, 342 f.3d at 830. we have found that there is c. 155 f.3d at 426-28 (finding that the act contemplates 342 f.3d at 830. substantial evidence is "such relevant we address the merits of the arguments, we are obliged of local government actions relating to telecommunica- 3. erly entered under rule 54, however, because after we third, she noted that although bell had adequate time presented the results of a balloon test at the property. to evaluate the evidence in the record supporting decision was supported by substantial evidence, that of the area. report filed by wireless applications corporation, a and whether the loss in property values would also unsightly and are blamed for reducing property values. taken largely from public roads but the codys and other record and the court's brief statement). similarly, not every superior service with a smaller impact on the sur- those reasons." todd, 244 f.3d at 60. the sixth circuit an agricultural setting, and that is likely one of the rea- bell "has investigated all feasible alternate locations," and are sufficient for that purpose. our task on appeal is to turn, what evidence in the record supported the board's zoning board and its officers, a burden the ordinance zoning maps or an overlay of zoning maps and propaga- for delay. otherwise, any order or other decision, how- the plaintiffs agreed to dismiss without prejudice the are filling gaps in the least intrusive manner by looking vicinity and which shall not change the essential was based on an on-site investigation and a map properties, showing what the tower would look like istrative agencies. primeco personal commc'ns, l.p. v. city or parties and may be revised at any time before the alleging several violations of the telecommunications considering an application for a permit to build a tele- the reasons underlying the zoning board's decision ment of the county and to protect the health, safety the revised plan also moved the tower further from u.s.c. � 332(c)(7)(b)(iii). count ii asserted that the ap- itofca, 235 f.3d at 363. in this case, the court and the to section 1512, paragraph 21, which required a written who viewed the crane test, which was similar to the ordinance. the plaintiffs claimed to work diligently to possible, and presented software-enhanced photographs to be located here. we take every angle and every burden of demonstrating not just that the application it to a different location, even though there was no evi- explanation that allows us, in combination with the with the provisions of this ordinance." r. 23, ex. 2, at met by the application. the minutes thus provide an comply with article 3, section 315, items (b) and (d), deal of detail about the evidence and the applicable in the we need not determine whether the judgment was prop- in particular, the zoning board found that the applica- has been held reasonable. willoth, 176 f.3d at 639; virginia tively as "bell." their interests in the appeal are, for the that a written decision was adequate so long as it the permit application. at the june meeting, the board by substantial evidence. see metropcs, 400 f.3d at 722; stantial evidence supporting a denial of a permit to build reject aesthetic opinions of experts whose study included nutting had assisted the zoning board in reviewing the next month, bell and the helchers filed a com- is admittedly not on a national scenic riverway, it is in the plaintiffs' request to reconsider the denial of the summary judgment in favor of the defendants, and 14 no. 07-3949 permit for the tower. id. although the helchers' property ebelhar for review. comi responded on february 25, 2005, f.3d at 59. the court noted that local zoning boards are that claim by noting that the tower height was necessary by designation) (same); new par, 301 f.3d at 395-96 winding roads, that other sites were not adequate, that the normal and orderly development and improvement circuit split on the issue); new par v. city of saginaw, 301 prior to the agenda deadline for the meeting. second, she decisions regarding personal wireless service facilities council of virginia beach, 155 f.3d 423, 429-30 (4th cir. local governments are entitled to weigh the aesthetic finally, bell has failed to demonstrate that the board zoning board allow construction of a new tower. a board under section 315(b) were not supported by substantial required to evaluate the maps and data. at the zoning required by the ordinance, the company had failed to do the minutes next detailed the objections of david and for the sake of brevity, we will refer to the plaintiffs collec-1 does not comply with the "in writing" requirement of the in written form, stating the reasons for the decision, requires district judges to provide reasons for decisions trate that all other hilltops and potential sites in be placed to provide adequate coverage. according to comport with three provisions of the ordinance. unreasonably discriminated among providers by denying zoning board and its members on this claim. board treated any other carrier more favorably. there is which are not at issue in this appeal, alleged violations 36 no. 07-3949 would adversely affect the aesthetic harmony of the is to enable effective judicial review of local government under section 1291), does not make it so." itofca, inc. v. of surrounding property. board member jake hoog con- language tracks that rule, which allows entry of a final mately twenty months with bell in preparing the ap- (holding that a board's decision to reject a permit on any explanation, evidence of investigation, or other or three; highway interchange; general business or degrading the signal. permit was denied. that the zoning board's decision does not comply confirmed that jamison road coverage was the primary section 1514(5) provides that the county may disap- more favorably, and also that the favorable treatment at the conclusion of all discussion, zoning board mem- no. 07-3949 13 that long process of explaining all that, i will simply traveled. to other carriers in dearborn county. but bell has not the normal and orderly development and improvement faults the board for failing to offer alternate sites. appel- it had investigated not only co-location but also six found that there was no textual basis for requiring relating to wireless facilities. was needed to close a gap in coverage. steve carr, a no. 07-3949 9 other categories of zoned land before applying to place interpretations of the "in writing" requirement in the writing must include a statement of "findings and con- district court correctly entered judgment in favor of the posed tower. at that august 11, 2004 meeting, ebelhar the codys' attorney then proffered additional objec- that its `existing application is the only feasible plan' ebelhar, the consultant hired by the zoning board, then 32 no. 07-3949 of the application and opined that bell and the helchers ment, the obstruction of vision, and the risk of a tower criteria for constructing the tower, and that the tower this factor alone may not have provided substantial structed. the attorney for the codys submitted a written the complaint. helcher v. dearborn county, 500 f.supp.2d no. 07-3949 35 tested the qualifications of nutting to study, review and article 3 of the ordinance required that bell obtain a bell and the helchers continue to rely on these unsup- seven other categories of property were inadequate sons that the ordinance insists that wireless providers representing a large number of residents in the area of not possible in this instance, that the tower would be tions to towers. bell conducted a "balloon test" at the requires that "[a]ny decision by a state or local govern- nutting company ("nutting") worked for approxi- bell's agent signed as "applicant" in violation of the writing. see metropcs, inc. v. city and county of san fran- codys presented these photo mock-ups to demonstrate a conditional use permit if the use "[w]ill not impede on appeal, both parties asserted that we have jurisdic- question when sitting by designation on the ninth circuit. that it had adequately considered placing the tower on to provide adequate coverage and that bell had reviewed unreasonably discriminated against bell, in violation of local zoning authority must issue a decision in writing bell did not demonstrate to the board's satisfaction that many times over the next several months in order to action); metropcs, 400 f.3d at 722 (cudahy, j., sitting had not signed it, because the proposed lease between stream, 342 f.3d at 834-35. in voicestream, we joined the we are greatly aided by his analysis. judgment on fewer than all of the claims "only if the a. denial of an individual permit does not `prohibit or evidence contained in a written record, as required by 47 property values. bell and the helchers provided photos the certified real estate appraiser introduced by the tion under 28 u.s.c. � 1291, which allows us to decide todd, 244 f.3d at 60. in fact, the minutes provide a great impression in our circuit. there are differing views3 no. 07-3949 15 provision of wireless communication services, in viola- the height of the tower from 250 to 190 feet, in order to in dearborn county since the ordinance went into effect ferguson, mo, 583 f.3d 1035, 1041 (8th cir. 2009) (holding professional property appraiser, both of whom testified and section 1291 may not supply jurisdiction. baker moved to deny the application for a special use tions act. the court also found that the zoning board's par, 301 f.3d at 395-96. see also sprint spectrum, l.p. v. among providers of functionally equivalent services[.] decision. voicestream minneapolis, inc. v. st. croix county, zoning board ignored the numerous propagation maps done the work and that ebelhar's company had reviewed county, and also contends that the company reduced the reasons were stated with sufficient clarity to permit an ment, 172 f.3d 307, 312-13 (4th cir. 1999) (writing the the proceedings that led to the government entity's deci- allowed for meaningful judicial review of the decision, bell, the board's experts knew from those maps and the area had been investigated. bell, a wireless service provider, wanted to close a gap sultants to assist the zoning board in making decisions of the proposed cincinnati bell wireless network the consultant suggested alternate sites for the tower primeco, 352 f.3d at 1149. the complaints made by the application, the evidence that was presented by evidence in the record that supports those reasons. new the decision is not supported by substantial evidence. and that the other carrier is similarly situated, i.e., that f.3d 390, 395 (6th cir. 2002) (collecting the views of contemplates that some discrimination between providers evidence standard in this instance, though, because the other area with which to review a wireless com- application meeting with ebelhar to discuss the pro- instead indicated it was adjacent to undeveloped as required under the ordinance, bell engaged in a pre- tional use permit to construct the tower at the helchers' f.3d at 1150. see also voicestream, 342 f.3d at 831 (because local government or instrumentality thereof to deny a administration's requirements for lighting the tower. property). of wallingford, 83 f.supp.2d 306, 309 (d. conn. 2000) ("[a] investigated." helcher, 500 f.supp.2d at 1117. and simulated pictures of the proposed 153-foot tower expansion. evidence. recall that the telecommunications act the zoning board met on march 14, 2006 to consider the issued by the zoning board. the "writing" issued by the denial but simply stated the request was denied "based on the tower would operate within fcc requirements. in applicant to prove that the cell tower was not harmful assessment of the evidence in the record supporting its conclusions to evidence in the record"); illinois rsa zoning board's decision had the effect of denying the required by 47 u.s.c. � 332(c)(7)(b)(iii). in count iii, the applicants failed to meet the standards in article 15, district." r. 1, ex. b, at 9. the codys testified that they bors, accompanied by the objections of many residents favor of the defendants on counts i through iv of the constructed on property zoned manufacturing one, two board not to approve the revised minutes and also re- and rejected all of them as inadequate to provide the and eliminat[es] the bar to our jurisdiction." jtc petroleum that it would interfere with scenic views provided sub- � 332(c)(7)(b)(iii). the substantial evidence standard is the county's list of preferences. only residential neigh- and its conclusion that the plaintiffs had failed to ade- few people would argue that telecommunications towers bell's application and concluded that the helchers' prop- sider other safety factors, such as the harm to the environ- appeals of "all final decisions of the district courts of the the final board member, jane ohlmansiek, asserted address the concerns raised in comi's letter. bell also had met the requirements necessary to construct the documents which locations should be investigated, and the height is necessary given the topography of the report demonstrating meaningful efforts to secure was not based on conjecture or speculation. rather it permit on this ground. see sprint pcs assets, l.l.c. v. city was not possible in this instance, the company has not lant's brief at 21. this is nothing more than an attempt ment. coopers & lybrand v. livesay, 437 u.s. 463, 467 (1978); entry of a judgment adjudicating all the claims and all less provider along a stretch of road against the aesthetic alone sufficient to justify a denial of a permit. primeco, 352 plication for a permit to build the tower. cms and chapter--section 13 that we submitted in writing ity of the courts that have reached this issue. the "in its construction, generalized aesthetic concerns are not or modify a wireless tower must describe the reasons for service providers. bell appeals. prove an application that, among other things, "[c]onflicts conforming with section 315(b). the zoning board r. 23, ex. 10, at 1309-10. as the district court noted, these here. section 1514 requires applicants seeking to place detrimental effect on land values, although he could not storage building on their property, and are authorized to remaining counts in exchange for a promise from the wise bucolic landscape. it is remarkably out of scale to 1033. section 1514 supplies a list of nine categories of were treated more favorably when none had been board. noted that the act allowed local governments to that the application did not meet the requirements and property zoned [zoning designations (2) through (7)] issue is de novo). we considered the meaning of the anti- be placed (1) on existing towers or structures without rounding community. an engineer from bell rebutted minutes also cite the specific provisions of the ordinance no. 07-3949 7 less providers. neither of these arguments has merit. our board's denial unreasonably discriminates between wire- court found, the meeting minutes fulfilled this require- mary judgment. the court stated that its earlier order properties. she also opined that the applicants had not historical significance. the codys' attorney instead con- that resolve any claim on the merits or terminate the the circumstances here more closely resemble those "offers little explanation and few facts" because the the helchers and bell was not signed by bell and thus 1465, 1491-1495, 1501-1563. in the codys' altered photos, permit effectively prohibits bell from providing wireless the minutes were not adequate to meet the act's require- objective of the tower, and that this road was heavily supplied substantial evidence to support a decision would rise high above the tree line, completely out of jections by residents that a monopole would have a request to place, construct, or modify personal wireless a number of landowners who opposed the building objections raised by neighbors who know the local ter to the surrounding area. many of the nearby home- parties does not end the action as to any of the claims tower. r. 23, ex. 29, at 1718, tr. at 46. it is difficult to the judgment did not resolve the litigation on the merits, that a visit to the proposed tower site, an aerial map existing facilities makes them as or more intrusive than representative of bell, then testified that co-location was boards typically are not populated with lawyers much river way was grounded in the specifics of the case and no. 4:06-cv-00102-seb-wgh--sarah evans barker, judge. we join the first, sixth and ninth circuits, the major- whether it be water tower, existing cell tower, allowed to build a new tower since the inception of the entirety may be viewed at www.dearborncounty.org/planning/ the structure, placement or cumulative impact of the that the central concern of the "in writing" requirement bell had no property interest in the area, and because setting forth the reasons for the decision and linking not "co-locate" the transmitters, that is, use already raised this issue at oral argument, the parties entered a defendants-appellees. 2 no. 07-3949 who purchased land and built homes in this area specifi- 2. conditional use permit from the zoning board in order to circuit specifically rejected the contention that the suming without deciding that the correct standard for when it summarized the facts of the dispute, recounted to support a conclusion." voicestream, 342 f.3d at 830 although the district court did not expressly invoke proposed tower. after the codys expressed their fear that equivalent one. nor has bell demonstrated that it was tional use "[w]ill be designed, constructed, operated, and "generic, nonspecific statements are unsupported by aesthetic grounds was supported by substantial evidence permitted, and where there was no evidence that the meeting. in early june 2006, the plaintiffs asked the plaintiffs' claims that all other sites were adequately considered the important arguments, and to enable a address in order for its application to comply with the testified that the site was chosen because it was in order from most to least favored, that transmitters building of limited height is far less visible to neighbors than municipal solutions ("cms") and ron ebelhar of h.c. detail. the discussion of bell's application began with megatrans logistics, inc., 235 f.3d 360, 363 (7th cir. 2000). consider seven other categories of zoned property judge the board's findings and conclusions against the as we discuss below, bell had not satisfied the board requirements such as signatures from land owners, and the application considers each possible co-location site and6 by both the condensed minutes of a council meeting zoned manufacturing one; (5) on property zoned 2005, they submitted their application to comi and bell again points to the experts' opinion that there was (same); todd, 244 f.3d at 60 (same). the first circuit above. consulting firm hired by two landowners, karen and approve the minutes of the march meeting. members of reasons to allow a reviewing court to evaluate the needed coverage. on january 23, 2006, comi sent a letter stated in the court's earlier order granting partial sum- character of the area; article 3, section 315, item d, 26 no. 07-3949 24 no. 07-3949 in the middle are courts that strike a balance between explains why it is inadequate to provide coverage for jamison existing towers to provide coverage for jamison road. judgments and the effect on property values. the codys, mize their "negative impact on the character and environ- rooftops, whatever. if we can utilize and enhance our we discussed above, the primary purpose of the "in although the statute prohibits as a consideration 22 no. 07-3949 tionship to the surrounding screening and landscape did not dispute the quality of the signal on jamison road, presented an adequate visual impact study to the zoning an additional five counts (counts v through ix) alleging r. 23, ex. 28, at 1706. three members of the board voted karen cody, residents of a subdivision situated adjacent tower, and that the zoning board should grant the per- parties expressly reserved to the plaintiffs the right to cants failed to satisfy. the court found that the minutes meet all of the relevant requirements, and on february 9, 6 no. 07-3949 question offered the following testimony to support the after the court entered its order granting partial sum- f.3d 630, 638-39 (2d cir. 1999) (holding that the act distances and angles. the codys then used those photo- the district; and article 15, section 1514, sub 5 in only views from public areas and not from residents' local zoning board has discretion to rely on the aesthetic 1. wireless pcs, inc. v. winston-salem zoning bd. of adjust- eleven feet in size. a relatively small commercial storage minutes" for the march 14, 2006 meeting (the same min- to allow for meaningful judicial review of the decisions supports the board's decision. 47 u.s.c. � 332(c)(7)(b)(iii). counts v through ix without prejudice and dismissing plaintiffs-appellants, under voicestream for a prohibition-of-service claim. deference to the local zoning board, and an appellate have the effect of prohibiting the provision of personal the facts presented and the board's determination"); todd, in dearborn county, indiana. when the local board of1 no. 07-3949 in favor of the motion and one opposed it. the chair did requirement will require reversal or remand. the area, and the concerns of the board members. the which concerned the effect of the tower on the appear- cir. 1999). we proceed then to the merits of the appeal. chichester twp., 504 f.3d 370, 392 (3d cir. 2007) (re- the surrounding area in some respects, it would not be ment that the decision be "in writing." the court found beach, 155 f.3d at 430. v. city of anacortes, 572 f.3d 987, 994 (9th cir. 2009) (ob- for noncompliance with section 1514 is supported by tion did not satisfy article 3, sections 315(b) and (d), wireless services.' 47 u.s.c. � 332(c)(7)(b)(i)(ii)." voice- foot tower would be optimal. another bell representative 1100 (s.d. ind. 2007). the court rejected the plaintiffs' documents identified the area in which the tower must terrain and the sight lines of their own homes, and may u.s.c. � 332(c)(7)(b)(iii). bell and the helchers contend board is the seventeen-page "zoning board of appeals reviewed by the consultants, the cellphone carrier had been balance the contribution the tower would make to the menting how visible the tower would be from various lent, that the local government treated another carrier word "denied" on a zoning permit application. at&t omnipoint commc'ns, inc. v. planning & zoning comm'n shared use of towers or the use of alternative buildings combination with the written record, to determine if supported by substantial evidence, that the denial of the jurisdiction. id. whether a decision is final for the pur- tower was necessary and ebelhar confirmed that bell had reviewing court to know the reasons for the judgment." circuit, which accepted as adequate a stamp of the needed to make out a claim under this provision of the tures; (2) on property zoned manufacturing three; (3) maintained that the zoning board should not accept new required to co-locate its transmitters on existing structures. ii. tions to the issuance of the permit. first, she asserted in the vicinity. we conclude therefore that substantial5 that the pole would not be completely screened, and denials that offered no reasons for the decision would road as a result of the applicant's noncompliance an application and explained the evidentiary basis for to demonstrate that the gap in coverage existed not for sions to the minutes. unable to agree on many points, the the reasons). on the threshold question of whether the ms. baker then made a motion to deny the applica- mary judgment, the parties filed a "joint motion for final alleged, much less presented evidence, that the zoning conclusory statements as "uncontradicted evidence" that height of the tower as much as possible without although bell arguably has explained why co-location david cody. the report conceded that the proposed so likely to be fruitless that it is a waste of time even to the tower presented no health-related risks linked to this was the first instance since the inception of the see metropcs, inc. v. city and county of san francisco, 400 f.3d and providing written evidence or a written record of conclusions of law. id. on the other hand, the todd court the minutes clearly delineate the issues that arose with first circuit in holding that a provider carries a heavy board member mike hall questioned whether bell had height of the pole (70 feet in that instance) was out of i. land zoned in the preferred categories would accom- within or in reasonable proximity of the search area wooded land. industrial-looking tower would not be harmonious with board tabled approval of the minutes until the next record. the court also noted that the minutes supplied determine whether substantial evidence in the record high enough to overcome issues with tree foliage and safe, that little traffic would be generated by the tower, writing." what is necessary for an adequate writing no. 07-3949 19 their property value would decrease significantly, eight no. 07-3949 25 requiring the applicant to show the location of the local residents in this case are representative of the counts i through iv with prejudice for the reasons harmonious with the appearance or intended character tower would negatively impact property values, al- wireless telecommunications facility on losekamp act of 1996, 47 u.s.c. � 332(c). the district court granted board with substantial evidence to reject the permit as non- of voicestream, where the local government denied a stated values than the location selected by the plaintiffs 34 no. 07-3949 primarily staffed by laypersons and it would not be no. 07-3949 3 written record, to determine if the decision is supported the ordinance required applicants to demonstrate why tower transmissions, and that the reduced 190-foot the "in writing" requirement is the one expressed in halted construction on an addition to their home when poses of section 1291 depends on whether the decision by presented his recommendation that the permit be ap- the zoning ordinance by failing to adequately illus- no. 07-3949 29 provided a detailed explanation regarding land categories 1998) (finding that the "in writing" requirement was met standard and the clear error standard, and so the relevant act that we apply in our review of the decisions of admin- and also recommended that the tower height could be (...continued)6 sought to build a cellphone tower on the helchers' land, 12 no. 07-3949 question that a district court determines without ordinance in which the consultants recommended that the communication services, and that the zoning board's modate the engineering needs of the proposed tower. in communications services. bell also argues that the avenue to co-locate on existing structures of height was supported by substantial evidence, a question we governments explicate the reasons for their decisions and for the seventh circuit court's review of a grant of summary judgment on this joint stipulation dismissing counts v though ix with claims or the rights and liabilities of fewer than all the tion maps, for example, the company essentially argues, ment because the minutes enabled the court to efficiently a dubious, literal reading of the act and a pragmatic, (2009) (noncompliance with circuit rule 50 does not always to address our jurisdiction. the defendants sought and bell failed to show that six other preferred categories of zoned that bell had failed to submit a completed application report on technical issues such as propagation maps. she zoning board rejected the plaintiffs' application for board, the concerns of the applicants and residents of with the act's requirement that the decision must be "in writing" requirement for the telecommunications act is prevent judicial review because the district court's reasoning effect this tower would have on this largely rural large helium balloon was floated to the height of the if the plaintiffs later moved to reinstate those claims. that document and in other documents, bell made a good any surrounding structures. of course, bell argues that decision whether to approve a permit to construct a later in the hearing. the codys, through their attorney, by the codys and other residents as "generalized" objec- tower) on property owned by dan and merry helcher from many nearby residences. they opined that the those studies. places squarely on the applicant for a conditional use of the ordinance governs the use of land zoned agri- and ask that you list that as the findings established reasons for the permit denial to allow a reviewing court section 1514, subparagraph 5 of the ordinance: to the county's plan commission stating that the con- the tower would be visible from residential areas but bell contends that the board's rejection of its applica- oughly the possibility of other viable alternatives, the of mequon, 352 f.3d 1147, 1148 (7th cir. 2003); voicestream, the codys' attorney also presented the report of wire- property could not be used. viewed from the property of the codys and other neigh- is allowed so long as it is reasonable); virginia beach, informed the applicant of the local government's r. 23, ex. 29, at 1721, tr. at 58. tab 13 is simply the docu- that the board's decision was not based on substantial tial hazards to children presented by the proposed ber baker moved to deny the application for the condi- 2002)). "under this standard, the provider must show platte county, mo, 578 f.3d 727, 732 (8th cir. 2009) (as- of surrounding properties in violation of section 315(d). stands out alone as an industrial blemish on an other- it was rejecting a proposed tower for aesthetic reasons federal rule of civil procedure 54(b), the court's refer to tab 13 that we submitted, and also reiterate were such that the tower would dominate the immediate the denial of the permit did not effectively prohibit the one provider but for all providers. she contended that no less visually intrusive location on which to place the bell investigated four existing wireless tower structures whether co-location had been adequately considered, and recommended granting the conditional use permit the existing or intended character of the general fact that the helchers' property had no particular 20 no. 07-3949 the plaintiffs had not met the requirements of the ordi- the zoning board, representatives of bell and the helchers, no land zoned in the other six categories would have leaves nothing for the court to do but execute the judg- "trust us; we looked." bell's argument amounts to a setting and found that this tower at this location was not where new antennae is [sic] required to provide rovner, circuit judge. cincinnati bell wireless, llc 16 no. 07-3949 identified eighteen requirements that bell needed to tower would be in the most visually intrusive location bell and the helchers next contend that the zoning utes we referenced earlier). because the contents of the before flaum, rovner and wood, circuit judges. with a letter detailing fifteen insufficiencies with the judicial opinion. therefore, a decision "in writing" is stamped on a letter from the planning commission des- aesthetics and compatibility with the character of the area zoning board's decision has the burden of proving that offer any specific measure of the predicted downward of palos verdes estates, 583 f.3d 716, 726 (9th cir. 2009) way interchanges. it is not surprising that a 190-foot board member asked for clarification on who had per- place, construct, or modify personal wireless service cause it's all about servicing the customer, because it character with any other natural or man-made structure in dearborn county, indiana ("county"). the company decision denying the application. in this instance, the result in a loss to the county tax base. recited boilerplate claims in their application for each statement and introduced a community planner and they learned that the tower might be built nearby. a real at stake, public commentary and a presentation from the providers, all in violation of 47 u.s.c. � 332(c)(7). before purported problem.' " voicestream, 342 f.3d at 834 (citing section 315(b) states that the board has the power to land) to submit a detailed explanation as to why a higher permit. by a vote of three to one, the zoning board denied build up to twenty-two storage spaces, each eleven feet by residents also questioned the necessity for the tower, to the board that the tower was not harmonious in charac- other residents spoke about their fears that the tower just summarized, present an adequate basis for judicial section 1514 consists of bell's conclusory statements, we availability of cellphone service against the detriments vided supplemental information to the consultants attached to the minutes and included in the record), and the act requires that "[a]ny decision by a state or allowed to construct towers on land zoned agricultural. ations had been largely ignored. bell had not responded ditional use permit was not supported by substantial proposed tower and photographs were taken at various priority site was not selected. r. 23, ex. 2, at 1032-33. ment or instrumentality thereof to deny a request to board's decision denying their application for a con- downsides towers present. they often are perceived as permit denial to allow a reviewing court to evaluate the another carrier provides functionally equivalent services, structures, but bell has yet to point to anything specific did not contain any explanation of the reasons for the did not unreasonably discriminate among wireless court expressly determines that there is no just reason codys' lawyer testified that, in his opinion, the proposed the photographic representations of the tower as and welfare of the public." r. 23, ex. 2, at 1023. article 9 compares the board's rejection of the permit to the voicestream, 342 f.3d at 833 (whether a particular zoning when the district court's reasoning is clear from both the pose. she also remarked that section 1514 required the to the area where the proposed tower would be con- not vote because the board's rules permit the chair to tions towers. uscoc of greater missouri v. city of formed the technical studies to determine whether the chair, jim deaton, remarked that the application did not link their conclusions to specific evidence in the record. mit. in every prior permit application for wireless coverage instead disguising the tower as a light pole and moving clude that the minutes met the standard we set forth formal findings of fact and conclusions of law. todd, 244 out land in the other categories. without pointing to tower as an indication that the board's findings erty and from other nearby residences and farms. the to evaluate the requested permit (including articles 3 and policy-based approach. the purpose of the "in writing" several courts); southwestern bell mobile sys., inc. v. todd, description indicating that credence is to be granted to to complete its application and supply all information objected to placement of a tower disguised as a flagpole a "desire to [a]ppeal the entry without the need to by noting the sections of the ordinance which the appli- no. 07-3949 5 related to cellphone towers. dick comi of the center for network by not having to go through a long zoning zoning classifications. rather than going through disguised to resemble a more palatable structure, but no allegation, for example, that other carriers were member asked ebelhar about the visual impact of the but was included in the county's appendix. the ordinance in its of impact. the community planner then testified that the and that no more was required by the telecommunica- frustrate meaningful judicial review. todd, 244 f.3d at 60. official_documents.htm (last visited jan. 12, 2010). and modification of cellphone towers in order to mini- for the southern district of indiana, new albany division. to rubber-stamp the experts' conclusory statements that of local governments. keeping in mind that local zoning in an area where industrialized land uses were may be apparent from the record); stoller v. pure fishing inc., and article 15, section 1514(5). we will examine, in local government denying a request to place, construct metropcs, new par, and todd). with that standard in mind, we turn to the decision also asserted that the act required a wireless provider land zoned for manufacturing, business, or for high- the question is whether the minutes, which we have case for ruling out co-location on existing towers or of the ordinance regulates the placement, construction word "denied" on the face of an application to build evidence in the record supporting those reasons. this tion of 47 u.s.c. � 332(c)(7)(b)(i)(ii). counts v though ix, nearby residents presented views of the tower and the telecommunications act, that the board's decision is not tion effectively prohibits bell from providing wireless the only evidence in the record regarding the board's property because of the applicants' noncompliance remarked, permitting local zoning boards to issue ordinance provisions. see platte county, 578 f.3d at 732 appearance with the existing or intended character of construction, location, aesthetic requirements, visual about the necessity of the tower, in violation of para- act of 1996, 47 u.s.c. � 332(c) (the "act"). count i alleged the first circuit therefore concluded that the written balloon test in the instant case, testified to the negative consider below, we will recount the minutes in some (8) on property zoned agricultural; and (9) on property no. 07-3949 33 so. she alleged that the application was inaccurate or permit application. zoning appeals ("zoning board" or "board") denied the with article 15, section 1514. maintained so as to be harmonious and appropriate in decision unreasonably discriminated among wireless which the applicant conflicted with the provisions of for substantial evidence under the telecommunications tower. district and circuit courts). some courts require that local ions. given that the only "evidence" that bell satisfied no. 07-3949 23 the denial and contain a sufficient explanation of those recording of what went on during the meeting and that reduced to 150 feet with a negligible difference in and objecting landowners all suggested numerous revi- to demonstrate that the carriers are functionally equiva- the consultants asked bell to demonstrate that it could dence that a light pole was any less unsightly than the impact the tower would have. this testimony and the authorize a conditional use permit so long as the condi- tower. a community planner opined at the hearing that ance and character of the surrounding area, as well as mental effect on property values. a real estate appraiser objected to the tower because its size, location and rela- at the end of all testimony, each of the five members the property line to comply with setback requirements. proved minutes of the march 14, 2006 zoning board graphs to extrapolate views of the tower from their prop- nance because they had not provided a visual impact affirmed. violations of the constitution and of their civil rights. 715, 721-23 (9th cir. 2005) (cudahy, j., writing for the panel). the proceedings, articulated the reasons for rejecting to meet the requirement of section 1512, paragraph 7, in cellphone signal coverage on a stretch of jamison road some concerns were more substantive calls for addi- "plainly require the state or local governments to issue the structural integrity of the proposed tower, or the substantial evidence contained in a written record." 47 weighed the value of closing a signal gap for one wire- the text of article 9 was not included in the record on appeal,2 patible with the appearance and character of the area the district court then entered a judgment dismissing claim that the board and the district court were required at all alternatives and ruling out other options. she also the regulation of the placement, construction, and by any state or local government or instrumentality complaint. as we mentioned above, the plaintiffs pled town of pelham, 313 f.3d at 630, 635). as we noted above, the application. at the may 2006 meeting of the zoning thereof . . . shall not unreasonably discriminate board meeting, a bell representative addressing this board of zoning appeals, et al., county zoning ordinance ("ordinance"). section 315 of of the neighborhood, and be visually intrusive. the facilities shall be in writing and supported by substantial and that `there are no other potential solutions to the regulate the placement of towers, taking into account though he conceded he could not predict the degree ordinance. the tower rises up like a nineteen-story martian machine impact assessment submitted did not acknowledge that plaintiffs did not explain why a transmitter could not be tion for the conditional use request to establish a long as the service provider has not investigated thor- the zoning board's enforcement officer describing the 244 f.3d at 60 (finding adequate a written decision that not every failure to meet the standard set in circuit rule4 viewed a staff report and site plan (both of which were quested that the board reconsider its decision to deny member patricia baker agreed that the placement of the ill. 1997) (the terms "in writing" and "written record" the fact that cincinnati bell wireless would not be twelve previous conditional use permit applications bell appeals. we affirm. 10 no. 07-3949 "in writing" requirement); at&t wireless pcs, inc. v. city the site would not encroach on private property, and that property was zoned agricultural, second to the last on 528 f.3d 478, 480 (7th cir.), cert. denied, 129 s. ct. 609 (2008) after the testimony, zoning board member patricia towers on lower priority land (such as agricultural unreasonable discrimination). discrimination based on on appeal, bell argues that the zoning board's decision 4 no. 07-3949 a wireless communication facility (essentially, a cellphone assessment as required by paragraph 23 of section 1512 possible that would provide the needed service. another application left bell unable to provide viable competition ported by substantial evidence. treated less favorably nor that any differing treatment the district court granted the defendants' motion for realistic to expect highly detailed findings of fact and are aesthetically pleasing, a local zoning board's aesthetic a 190-foot tower. be sufficient evidence for denying the construction of a review of the prohibition-of-service claim is de novo. graph 1 of section 1512. moreover, the application failed cellphone tower requires the local government to addressed property values and concerns regarding poten- purposes of article 15. in particular, aesthetic consider- agricultural site was needed, given that section 1514 of bell's claim of unreasonable discrimination fails. the prejudice. that stipulation "wind[s] up the litigation where the decision explained that the local government no. 07-3949 17 (7th cir. 1999)). the party seeking to overturn the local evidence supported the board's decision to reject the has been rejected but that further reasonable efforts are permit to build a tower near a scenic river way. we noted with article 3, sections 315(b) and 315(d); and article 15, character of the area, letters from three nearby residents, to reverse the burden of finding alternate sites onto the the tower presents to the surrounding community. see how bell can make a claim that these other carriers quately investigate other kinds of zoned land were sup- sion"). on the other end of the spectrum is the fourth and rejected as inadequate four alternate sites for the tacted by the codys. wireless applications reviewed that there was no way to hide the structure from view, that section 1512, paragraph 23, which required the ap- refusing to issue the permit. primeco, 352 f.3d at 1149. the the district court ends the litigation on the merits and visual effect on adjoining properties. in fact, the visual the proposed facility); sprint spectrum l.p. v. willoth, 176 communications tower, and by the word "denied" restricted business. instead, the plaintiffs simply strated that the applicants did not meet the standard set v. nor the court were required to accept unsupported opin- from h.g. wells' "war of the worlds," marring a land- we have an independent obligation to determine our evidence to support the county's decision to deny the evidence. bell discounts the photo simulations presented nearest resident. the application also failed to conform falling due to wind or ice. primeco, 352 f.3d at 1149. claim that the zoning board minutes were an inaccurate that the county's determination that the proposed tower treatment of other carriers is the undisputed statement some discrimination among providers but prohibits only cisco, 400 f.3d 715, 721-23 (9th cir. 2005) (noting the would be less visible than the flag pole. primeco, 352 city's rejection in primeco. but in primeco, the citizens munications tower request is your checklist of certain minutes will also be relevant to whether the decision 30 no. 07-3949 decision "must contain a sufficient explanation of the a picturesque rural area where a 190-foot structure she noted that the application did not explain why an character for the area. moreover, the city had suggested provision of wireless service, and that the zoning board permit. bell also argues that the district court and the highway interchange; (6) on property zoned general of the surrounding property for uses permitted in the in fact considered other areas for placement of the tower. increasing the existing height of those towers or struc- clusions, and the reason or basis therefor." virginia owners also wrote letters to the board protesting the the construction of telecommunications towers) under wireless facility disguised as a pole. id. a reasonable a wireless communications tower is adequate to meet the most part, aligned. (quoting aegerter v. city of delafield, wi, 174 f.3d 886, 889 to construct the tower on the helchers' property. prohibition clause in voicestream and concluded that "so highly deferential to the local government making the would reduce their property values, change the character balloon test from farms and residences nearby. r. 23, at is a customer-based business. so, i would just refer to adequate if it provides an explanation that allows us, in was unreasonable. under any formulation of the statute, no practical difference between the substantial evidence failure to meet the standard we have set for the "in writing" evidence for the decision to deny the permit. we need not litigate their remaining claims at this time." r. 47, at 1. of the zoning board spoke about the application. the writing" requirement is met so long as the written decision to the nature and character of the neighborhood or com- did not meet the "in writing" requirement when it try. voicestream, 342 f.3d at 834 (citing second generation trend. this is the thinnest part of the county's case, and no. 07-3949 11 590-91 (7th cir.), cert. denied, 129 s. ct. 1924 and 129 s. ct. 2817 dearborn county, indiana courts interpreting this provision require the plaintiff f.3d at 1150-51. decide what would be needed to meet the substantial which states that the facility will not impede the response to questions from board members, carr also application, bell sued the board and its members for build the tower at that site. r. 23, ex. 1, at 1019. article 15 was "now made a final and appealable judgment there helchers' land and setting forth the criteria to be used argued october 31, 2008--decided february 9, 2010 constructed, operated, and maintained so as to be prepared from the wireless carrier's crane test, docu- board, many disputes arose during the process to made substantive changes to the plan, such as reducing 8 no. 07-3949 substantial evidence. appeal from the united states district court evidence as a reasonable mind might accept as adequate the proposed tower, presented photographs of several wireless carrier); platte county, 578 f.3d at 733 (finding 18 no. 07-3949 a conditional use permit because the application did not road. the board rejected the application, in part, because where the evidence included propagation maps, mock-ups b. followed suit in new par, requiring that a decision of a approved the minutes as revised ("minutes") and denied the order of the county's preference. the county prefers, impact of such a structure on the scenery and on their with the following ordinances: article 3, section 315, cerns about the visual impact of the tower and its detri- here unless there was a definite need for this facility props., l.p. v. town of pelham, 313 f.3d 620, 629 (1st cir. the county's conclusion that the tower would be incom- harmonious to the existing development of surrounding the district court granted partial summary judgment in no. 07-3949 21 violating various provisions of the telecommunications minutes met the "in writing" requirement, we con- that the majority of the voting members found were not (continued...) carrier to use as a comparator much less a functionally (finding a written decision adequately explained that no. 3, inc. v. county of peoria, 963 f. supp. 732, 743 (c.d. application. some of the items were simple documentary signal coverage. contains a sufficient explanation of the reasons for the partial summary judgment on the first four counts of plaintiffs contended that the zoning board's decision nearby locations. voicestream, 342 f.3d at 832. persons neither the board nor the court had the expertise character of the same area." r. 1, ex. b, at 9. although a parcel zoned "agricultural" under the dearborn that, although the tower would not adversely affect effect of a wireless tower in deciding whether to permit no. 07-3949 27 the ruling); new par, 301 f.3d at 396 (finding a decision harmonious and appropriate in appearance with we note that the helchers own and operate a commercial5 map prepared from the crane test provided substantial judgment." r. 47. in that motion, the parties expressed although the seventh circuit has yet to rule on the "in3 less judges, we cannot expect something akin to a 47 u.s.c. � 332(c)(7)(b)(i)(i). count iv maintained that the co. v. piasa motor fuels, inc., 190 f.3d 775, 776-77 (7th curred with the chair's assessment that the applica- of the surrounding property for uses permitted in the tower on the helchers' agricultural property. that meeting did not constitute a sufficient written decision as road but suggested that other sites could deliver modification of personal wireless service facilities normal and orderly development and improvement the act required wireless providers to prove that they sultants had completed their review of the application showing the company even considered much less ruled beach, 155 f.3d at 427. bell has not identified any other reasons produces, to assure the parties that the court has review of the board's decision. we find that the minutes ever designated, that adjudicates fewer than all the to a request for information from the county's agent proposed flag pole and no evidence that the light pole (no remand for compliance with circuit rule 50 is necessary had been required to co-locate on an already existing service facilities shall be in writing and supported by satisfied the technical specifications. neither the board of the tower spoke at the meeting to express their con- united states court of appeals property on which wireless transmitters may be placed, in litigation. circuit rule 50 "serves three functions: to plicants to submit an environmental impact assessment, 15 of the ordinance). the enforcement officer also re- certain circumstances. the county employed two con-2 from the board's expert, ebelhar, that every other carrier no. 07-3949 31 neighborhood so as to prevent development and use 244 f.3d 51 59 (1st cir. 2001) (noting the broad range of the decision is supported by substantial evidence.4 based on those taken during bell's balloon test, modi- was unreasonable. see ogden fire co. no. 1 v. upper (affirming that a decision met the "in writing" requirement proposed site and provided photographs to the board. a ment containing the conclusory statements that no question is whether the zoning board clearly erred in item b, which states that the facility will be designed, before resorting to placement on agricultural land. bell dileo v. ernst & young, 901 f.2d 624, 626 (7th cir. 1990). as a blanket opposition to poles, for example, would not company's compliance with section 1514: on property zoned manufacturing two; (4) on property and rf data provided by bell, contending that these before agricultural land could be employed for this pur- less applications corporation, a consulting firm con- 2-9-10 process, we're going to go through that process be- under the telecommunications act is an issue of first tower, and he stated that it was the least intrusive tower 28 no. 07-3949 erty did not serve the best interest of the community. fied to show a scaled, graphical representation of the requirement is to allow for meaningful judicial review