New Par v. City of Saginaw

• Decision Date: 14 August 2002
• Docket Number: No. 01-2083.,01-2083.
• Citation: 301 F.3d 390
• Parties: NEW PAR, d/b/a Verizon Wireless, Plaintiff-Appellee, v. CITY OF SAGINAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

301 F.3d 390

NEW PAR, d/b/a Verizon Wireless, Plaintiff-Appellee, v. CITY OF SAGINAW, Defendant-Appellant.

No. 01-2083.

United States Court of Appeals, Sixth Circuit.

Argued: June 14, 2002.

Decided and Filed: August 14, 2002.

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Zora E. Johnson (argued and briefed), Dykema Gossett, Bloomfield Hills, MI, for Plaintiff-Appellee.

Thomas H. Fancher (argued and briefed), Saginaw, MI, for Defendant-Appellant.

Before DAUGHTREY and MOORE, Circuit Judges; STAFFORD, District Judge.^*

OPINION

MOORE, Circuit Judge.

Defendant-Appellant, the City of Saginaw, Michigan, appeals from the district court's grant of summary judgment for Plaintiff-Appellee, New Par d/b/a Verizon Wireless ("New Par"). In March 2000, New Par, a provider of cellular telephone service, sought to obtain a building permit from Saginaw in order to erect a cellular tower. Because New Par's property did not meet Saginaw's minimum-size zoning requirements for "light industrial" use, New Par requested a variance from Saginaw's Zoning Board of Appeals. Following New Par's presentation of its request at two meetings, the Board denied the request. In June 2000, New Par filed a complaint against the City of Saginaw in the district court under the Telecommunications Act of 1996, alleging that the denial of its variance request violated both the Act and New Par's substantive due process rights and constituted a regulatory taking. The parties subsequently filed cross motions for summary judgment. In July 2001, the district court granted New Par's motion and denied Saginaw's motion, finding that the Board's denial of New Par's variance request violated the Telecommunications Act because the denial was not supported by substantial evidence in the written record. The court then issued an injunction ordering the City of Saginaw to grant New Par's variance request. For the reasons explained below, we AFFIRM both the order of the district court granting New Par's motion for summary judgment and the district court's issuance of an injunction ordering Saginaw to grant New Par's variance request.

I. BACKGROUND

New Par provides cellular telephone service in the greater Detroit area, including the City of Saginaw, in accordance with a license issued by the Federal Communications Commission ("FCC"). To improve its cellular coverage in the area, New Par obtained a property ("the property") in Saginaw with the intent of erecting a "150-foot-tall cellular telephone monopole." Appellee's Br. at 6. The property has a frontage of sixty feet, and it is approximately 3,400 square feet. Originally, the property was zoned for residential use, but it is currently zoned for light industrial ("M-1") use.¹ However, under the zoning code, M-1 properties must have a minimum frontage of 100 feet and a minimum square footage of 20,000 feet. In March 2000, New Par submitted an application for a building permit for the cellular tower with the City of Saginaw. Because the property did not meet the minimum size requirements, Saginaw denied the application. On April 20, 2000, therefore, New Par sought a variance from the Saginaw Zoning Board of Appeals ("the Board") from the minimum size requirements.

The Board considered New Par's request for a variance at its meetings on May 3, 2000, and June 7, 2000. At the meetings, New Par explained that it needed the property to fill a "gap" in its coverage area because there were no reasonable alternative sites. A few Board members and neighbors asked questions, and New Par agreed to look into a proposed alternative site and to landscape the area around the tower base. On June 7, 2000, the Board denied New Par's request for a variance: of the six Board members, two voted for the request, three voted against the request, and one abstained. On June 28, 2000, New Par filed a complaint in the United States District Court for the Eastern District of Michigan against the City of Saginaw, alleging that the Board's denial of its request for a variance (1) violated the Telecommunications Act of 1996 (the "Act"), as codified at 47 U.S.C. § 332 et seq.; (2) violated New Par's substantive due process rights; and (3) constituted a regulatory taking. Both Saginaw and New Par subsequently filed motions for summary judgment.

On July 11, 2001, the district court issued an order granting New Par's motion for summary judgment and denying Saginaw's motion for summary judgment. The Act provides that "[a]ny 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). Although the district court concluded that the Board's decision in regard to New Par's variance request was "in writing" for the purposes of the Act, the court concluded that the decision was not supported by substantial evidence contained in a written record. Because the district court also concluded that it was appropriate to grant New Par injunctive relief for Saginaw's violation of the Act, the Court dismissed as "moot" New Par's substantive due process and regulatory takings claims.² Saginaw timely appeals.

II. ANALYSIS

A. Standard of Review

We review de novo a district court's order granting summary judgment. Rannals v. Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir.2001), cert. denied, 534 U.S. 1132, 122 S.Ct. 1074, 151 L.Ed.2d 976 (2002). Under Federal Rule of Civil Procedure 56(c), this court affirms a grant of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute over a material fact cannot be "genuine" unless a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing the district court's decision to grant summary judgment, this court must view all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We review for an abuse of discretion a district court's issuance of a permanent injunction. See Tropf v. Fidelity Nat'l Title Ins. Co., 289 F.3d 929, 936 (6th Cir.2002).

B. Telecommunications Act of 1996

The Telecommunications Act of 1996 provides in pertinent part as follows:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, 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.

(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) 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.

(iii) 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.

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

47 U.S.C. § 332(c)(7). We have observed that "section 332(c)(7) `is a deliberate compromise between two competing aims — to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.'" Telespectrum v. Pub. Serv. Comm'n, 227 F.3d 414, 423 (6th Cir.2000) (quoting Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 407 (3d Cir.1999)). As noted above, § 332(c)(7)(B)(iii) is at issue on this appeal.

C. "In Writing" Requirement

New Par argues that the Board's denial of its variance request violated 47 U.S.C. § 332(c)(7)(B)(iii) because the denial was not "in writing" for the purposes of the Act. The district court described the Board's decision in this case as follows:

In the instant case, the zoning board of appeals did not issue written reasons for its decision. It did, however, issue an order summarizing the request, the decision, and the votes of individual board members. The order does state that the denial was "[b]ased on the facts presented and the Board's determination, both of which will appear in the minutes of this meeting."

Joint Appendix ("J.A.") at 248 (Op. and Order) (emphasis in original omitted); see also J.A. at 137 (Bd.Order). The district court then concluded, after reviewing some of the case law from other district courts, that the Board's denial satisfied the "in writing" requirement. We have not defined the "in writing" requirement of the Act in this circuit, and we recognize that other courts have differed in their interpretations of the requirement. We now, however, adopt a definition of the "in writing" requirement similar to the definition adopted by the First Circuit, and we conclude that, under this definition,...