American Tower, LP v. City of Grant

• Decision Date: 26 December 2000
• Docket Number: No. C1-00-786.,C1-00-786.
• Citation: 621 N.W.2d 37
• Parties: AMERICAN TOWER, L.P., a Delaware limited partnership, Respondent, APT Minneapolis, Inc., a Delaware corporation, Plaintiff, v. CITY OF GRANT, Appellant.
• Court: Minnesota Court of Appeals

621 N.W.2d 37

AMERICAN TOWER, L.P., a Delaware limited partnership, Respondent, APT Minneapolis, Inc., a Delaware corporation, Plaintiff, v. CITY OF GRANT, Appellant.

No. C1-00-786.

Court of Appeals of Minnesota.

December 26, 2000.

Gary A. Van Cleve, Mark D. Christopherson, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, for respondent.

James M. Strommen, Karen R. Cole, Kennedy & Graven, Chtd., Minneapolis, MN, for appellant.

Considered and decided by WILLIS, Presiding Judge, CRIPPEN and PETERSON, Judges.

OPINION

WILLIS, Judge

The City of Grant appeals from the district court's order granting summary judgment in favor of American Tower. We affirm.

FACTS

On August 31, 1999, American Tower, a company that constructs telecommunications towers, submitted an application to the City of Grant for a conditional-use permit (CUP) to build a tower in Grant. Approximately one month later, the city's planning commission approved the application and forwarded it to the city council. At its October 1999 meeting, the city council tabled consideration of American Tower's application. On November 2, 1999, American Tower informed the city that it considered the application approved because the city had not made a decision within 60 days, as required by Minn.Stat. § 15.99, subd. 2 (1998). On the same day, after being told of American Tower's position, the city council convened to discuss American Tower's application. American Tower's notification notwithstanding, the city moved forward with its review and denied the application in December 1999.

Minn.Stat. § 15.99, subd. 3 (1998), permits municipalities to extend unilaterally the statutory 60-day deadline for municipal action for up to an additional 60 days by notifying applicants of an intention to do so. The city maintains that the application materials sent to American Tower contained such a notice.

After filing a complaint and a petition for a writ of mandamus, American Tower moved for summary judgment. The district court granted the motion, reasoning that (a) the Telecommunications Act did not preempt state law and (b) the city did not abide by the requirements of Minn. Stat. § 15.99. This appeal followed.

ISSUES

I. Did the district court err in concluding that Minn.Stat. § 15.99, subd. 2 (1998), is not preempted by the Telecommunications Act?

II. Did the city give effective notice to American Tower of a 60-day extension under Minn.Stat. § 15.99, subd. 3 (1998)?

ANALYSIS

On appeal from summary judgment, a reviewing court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990)

. No genuine issue of material fact exists "`[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.'" DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). The party resisting summary judgment must do more than rest on mere averments. Id. at 71. Appellate courts view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

The city argues that Minn.Stat. § 15.99, subd. 2 (1998), conflicts with the Telecommunications Act and is therefore preempted. Minn.Stat. § 15.99, subd. 2, provides that a

[municipality] must approve or deny within 60 days a written request relating to zoning * * *. Failure * * * to deny a request within 60 days is approval of the request. If [a municipality] denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

A municipality may extend this 60-day deadline for up to an additional 60 days if it provides written notice of the extension to the applicant, stating the reasons for the extension and its anticipated length. Minn.Stat. § 15.99, subd. 3(f) (1998).

The Telecommunications Act also contains a timeliness requirement:

A state or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

47 U.S.C. § 332(c)(7)(B)(ii) (emphasis added). The Telecommunications Act is intended to create a national policy framework to accelerate the deployment of telecommunications technology. Virginia Metronet, Inc. v. Board of Supervisors, 984 F.Supp. 966, 970 (E.D.Va.1998). It does so, in part, by placing certain restrictions upon the authority of local bodies to regulate wireless communications facilities. Id.

The preemptive effect of a statute is a question of law, subject to de novo review. In re Speed Limit for Union Pac. R.R., 610 N.W.2d 677, 682 (Minn.App. 2000). State laws that interfere with, or are contrary to, the laws of Congress are invalid. Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 211, 6 L.Ed. 23 (1824). If Congress evinces an intent to occupy a given field, state laws falling within that field are preempted. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). But the "`historic police powers of the [s]tates' are not to be eclipsed unless to do so was `the clear and manifest purpose of Congress.'" Dahl v. Charles Schwab & Co., 545 N.W.2d 918, 922 (Minn.1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).

Federal law preempts state law when (1) a statute contains an express preemption clause, (2) preemption can be inferred from the extent of the federal involvement or the scope of the federal interest in a regulated field, or (3) state law conflicts with federal law. Pikop v. Burlington Northern R.R. Co., 390 N.W.2d 743, 748 (Minn.1986). The city argues that the 60-day time limit under Minnesota law conflicts with the "reasonable amount of time" called for by federal law and is thus preempted.

The city argues that 60 days is not a reasonable amount of time to consider an application to construct a telecommunications tower. In support of this proposition, the city cites cases in which courts have found reasonable periods longer than 60 days for municipalities to consider applications for permits to construct telecommunications towers. See, e.g., Virginia Metronet, 984 F.Supp. at 977

(stating that 14 months is not per se unreasonable). But the fact that courts have found longer periods reasonable does not mean that 60 days is unreasonable.

The language and legislative history of the Telecommunications Act, as well as reported cases addressing the reasonable-time issue, support the view that section 15.99 does not conflict with the Telecommunications Act and is therefore not preempted. First, the Act preserves the authority of local governments over zoning matters, providing that

nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

47 U.S.C. § 332(c)(7)(A). Congress has thereby given municipalities latitude in exercising their police powers in zoning decisions regarding telecommunications towers. See Omnipoint Communications, Inc. v. Foster Township, 46 F.Supp.2d 396, 401 (M.D.Pa.1999)

(stating that although Telecommunications Act places certain restrictions on local authorities, it does not preempt their ability to control zoning decisions regarding telecommunications services). Further, the Act contains a section captioned "State preemption" that specifically prohibits states and local governments from regulating the entry of or the rates charged by mobile services. 47 U.S.C. § 332(c)(3). But that section does not provide that the Act's reasonable-time provision preempts state law regarding the time within which a unit of local government must act on an application to construct a telecommunications tower. Id.

The legislative histories of the Telecommunications Act and Minn.Stat. § 15.99 also support the view that the two statutes do not conflict. The conference committee report on the Telecommunications Act suggests that timeliness issues should be determined at the state level.

[D]ecisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance * * * the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their request to any but the generally applicable time frames for zoning decisions.

H.R. Conf. Rep. No. 104-458, at 208 (1996) (emphasis added). Indeed, as one court has noted, "[t]here is nothing to suggest that Congress, by requiring action `within a reasonable period of time,' intended to force local government procedures onto a rigid timetable." Sprint Spectrum, L.P. v. City of Medina, 924 F.Supp. 1036, 1040 (W.D.Wash.1996); see also Sprint Spectrum L.P. v. Zoning Hearing Bd., 43 F.Supp.2d 534, 537 (E.D.Pa.1999)

(interpreting the Telecommunications Act's reasonable-period-of-time requirement to be congruent with a state statute imposing a 60-day time limit); Flynn v. Burman, 30 F.Supp.2d 68, 74 (D.Mass.1998) (holding that a local commission had not failed to act on an application within time limit set by state law and, consequently, had not failed to act within a reasonable time under Telecommunications Act). Thus, under the Telecommunications Act, state law determines what is a reasonable period of time to act on applications to...