Aegerter v. City of Delafield, Wis.

• Decision Date: 19 April 1999
• Docket Number: No. 98-2422,98-2422
• Citation: 174 F.3d 886
• Parties: John C. AEGERTER and Air Page Corp., Plaintiffs-Appellants, v. CITY OF DELAFIELD, WISCONSIN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 886

174 F.3d 886

John C. AEGERTER and Air Page Corp., Plaintiffs-Appellants, v. CITY OF DELAFIELD, WISCONSIN, et al., Defendants-Appellees.

No. 98-2422.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 1998.

Decided April 19, 1999.

Dennis P. Birke (argued), Donald L. Bach, Dewitt, Ross & Stevens, Madison, WI, for Plaintiffs-Appellants.

Michael J. Lawton (argued), Lathrop & Clark, Madison, WI, for Defendants-Appellees.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

The Telecommunications Act of 1996 was nothing if not a complex balancing act among many conflicting interests. Not the least of these were the interests of state and local governments in continuing to regulate certain aspects of this industry, and the need for a uniform federal policy. This case involves one of those tensions, as it relates to the provision of personal wireless services. The Act empowers state and local governments to regulate the placement of facilities for personal wireless services, but their authority is not unfettered. They must now support any decision to deny certain requests for those facilities with a written opinion that is based on substantial evidence in a written record, and they may not "unreasonably discriminate among providers of functionally equivalent services." See 47 U.S.C. § 332(c)(7)(B)(iii) and (B)(i)(I). Plaintiffs-appellants John C. Aegerter and his company Air Page Corporation (to which we refer collectively as Air Page) seek to persuade us that the City of Delafield, Wisconsin, violated their rights under the Act when it denied permission to replace an existing telecommunications tower with a larger one on the same site. The district court rejected their challenge, and so do we. While the conclusions the City reached may not be the only possible ones, they find support in the written record and therefore must be respected.

I

Air Page offers a wireless paging service, for which it uses a telecommunication tower that it first leased in 1988 and Aegerter then purchased in 1993. The tower is in a residential area of Delafield; it was built in 1964 and currently stands 360 feet tall and 27 inches wide at the base. The Delafield area is hilly, and the Air Page tower stands on one of the highest of those hills. It is thus very well positioned to send a strong signal to the entire area, and, in fact, nearly every paging service provider in the area leases space on the tower from Air Page.

When the tower was first built, the four-acre piece of land on which it stands was zoned R-2 residential, under which the tower was a permissible use. Since then, the zoning laws have become more strict, and the land is now zoned R-1 residential. But for a grandfather clause, the tower would be impermissible, but it is considered a legal nonconforming use. As such, Air Page may perform "lifetime" structural repairs or alterations on the existing tower, as long as the changes do not exceed 50% of the value of the structure. If Air Page wishes to do more, it must obtain a permit from the City.

That is exactly Air Page's problem. It wants to build a replacement tower on the same site, which offers significant topographical advantages, but the City has refused to issue a conditional use permit. The proposed new tower would be 400 feet tall (or, counting the antenna, 422 feet) and 51 inches wide at the base--"merely" another two feet, as Air Page puts it, or nearly double the existing width, as the City does. On the plus side, the new tower would be in compliance with safety and engineering standards Wisconsin enacted after the old tower was built (with which it need not comply, thanks again to grandfathering). In addition, it would provide a better signal not only for Air Page, but for all the other wireless providers who lease space on the tower. On the minus side, the area has become a tidy residential community since the original tower was built, and the residents do not relish the idea of an even bigger tower in their midst.

When Air Page first applied for its permit to build the new tower, the City staff recommended to the planning commission that the application should be granted. The commission then held a hearing, at which it heard testimony both from Aegerter and community residents. It voted to recommend denial of the permit, and the City's Common Council (the body with the final authority to decide) did so.

Air Page then filed suit in federal district court against the City, as well as the Common Council, the Plan Commission, and their members. In January 1998, the district court ruled that the City's denial of Air Page's application violated the provision of the Telecommunications Act of 1996 that states:

Any 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). The district court ordered that the case be remanded to the City, so that it could hold a hearing and render a decision in writing that "set forth with particularity the ... specific factual bases and reasons" for denying or approving the permit. No one appealed from that decision. Instead, as the court had contemplated, the Common Council conducted a hearing and shortly thereafter issued a unanimous decision, again denying the application. The Common Council cited three grounds for its decision: (1) the proposed tower would be an expansion of a commercial use in a residential area; (2) the proposed tower would not be in aesthetic harmony with the neighborhood; and (3) granting the permit would conflict with City policy and would result in more favorable treatment of Air Page than of other personal wireless services, which had been denied permission to construct telecommunications towers in residential neighborhoods. Air Page returned to the district court, which found in the City's favor on the merits.

II

Before this court, Air Page has pressed two arguments: first, it claims that the City's decision must be reversed because it is not supported by substantial evidence in the record, and second, it contends that in denying the application, the City unreasonably discriminated among functionally equivalent wireless services. We consider these in turn.

When Congress uses a term of art like "substantial evidence" in a statute, we interpret it according to the common meaning of that term unless there is some indication in the law that the term is being used in a special way. Here, both parties have agreed that no such special meaning was intended for the substantial evidence standard of review in § 332(c)(7)(B)(iii). (For those who find legislative history useful, there is additional support for this proposition in H.R. Conf. Rep. No. 104-458, at 206 (1996)). Thus, we turn to the normal substantial evidence standard that we apply to review of agency decisions. This is a deferential standard. In cases in which the court of appeals is not reviewing an agency decision directly, but instead is looking at a district court's conclusion about the agency's action, both courts review the entire record to see if it contains "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Dilling Mechanical Contractors, Inc. v. NLRB, 107 F.3d 521, 524 (7th Cir.1997) (quotations and citation omitted) (statement of standard); Griffith v. Callahan, 138 F.3d 1150, 1152 (7th Cir.1998) (same standard for district court and court of appeals in Social Security appeals, which also go initially to the district court).

Our colleagues in the Fourth Circuit have suggested that there might be an even more deferential version of the substantial evidence standard that applies to this section of the Telecommunications Act, because it will often involve review of a city council's decision or that of another legislative body. See AT & T Wireless PCS, Inc. v. City Council of the City of Virginia Beach, 155 F.3d 423, 430 (4th Cir.1998). The "reasonable mind" of a legislator, the court suggested, might not be the same thing as the "reasonable mind" of a bureaucrat, and it is both natural and proper for legislators to weigh heavily the views of their constituents and even allow these views to "trump those of bureaucrats or experts." Id.

Taking AT & T Wireless as a whole, however, it is not at all clear that the statement to which we have just referred made any difference to the outcome. This court has expressed skepticism in the past about the ability of judges to apply more than a few standards of review. United States v. Boyd, 55 F.3d 239, 242 (7th Cir.1995) ("[T]here are more verbal formulas for the scope of appellate review ... than there are distinctions actually capable of being drawn in the practice of appellate review."). It is possible, though not always easy, to distinguish among de novo review, substantial evidence review, abuse of discretion...