Preferred Sites, LLC v. Troup County, No. 01-14182.

• Citation: 296 F.3d 1210
• Decision Date: 10 July 2002
• Docket Number: No. 01-14182.
• Parties: PREFERRED SITES, LLC, Plaintiff-Appellee-Cross-Appellant, v. TROUP COUNTY, Defendant-Appellant-Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

296 F.3d 1210

PREFERRED SITES, LLC, Plaintiff-Appellee-Cross-Appellant, v. TROUP COUNTY, Defendant-Appellant-Cross-Appellee.

No. 01-14182.

United States Court of Appeals, Eleventh Circuit.

July 10, 2002.

COPYRIGHT MATERIAL OMITTED

Edward L. Long, Jr., Willis, McKenzie & Long, LaGrange, GA, for Troup County.

Sara Ann Evans, George C. Rosenzweig, Rosenzweig, Jones & MacNabb, P.C., Newnan, GA, for Preferred Sites, LLC.

Appeals from the United States District Court for the Northern District of Georgia.

Before BLACK and HULL Circuit Judges, and LAZZARA^*, District Judge.

BLACK, Circuit Judge:

This case involves an application of the Telecommunications Act of 1996 (TCA) to the land use decisions of a local government. Pub.L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 15 and 47 U.S.C.). Preferred Sites, LLC (Appellee) filed suit against Troup County, Georgia (Appellant), alleging the county's Zoning Appeals and Planning Board (the Board) violated § 704(a) of the TCA by denying its application for conditional use approval to construct a multiple user-wireless communication tower. Appellee alleged the Board's decision was not supported by substantial evidence contained in a written record, as required by § 704(a). The district court agreed, granting summary judgment in favor of Appellee and ordering Appellant to approve the conditional use permit. We affirm.

I. BACKGROUND

A. Factual and Procedural Background

Appellee owns, operates, and manages free-standing wireless communication towers, which typically are used to provide cellular telephone service. Appellee also acts as a site selection firm for the wireless communication industry. As part of this business, Appellee sought to construct a 250-foot tower on a 7.6 acre parcel of property owned by Charles and Ruth Bailey in LaGrange, Georgia, which is located in Troup County. To obtain permission to construct the tower, Appellee, through its agent, applied to the Board for conditional use approval. Appellee's application was required by the Troup County Zoning Ordinance, which sets forth the standards for placement, design, and removal of telecommunications antennas and towers. Troup County, Ga., Comprehensive Zoning Ordinance, Appendix A, Art. IV, § 14 (1999).¹

On June 8, 2000, the Board held a public hearing at which it considered Appellee's conditional use application. The minutes of the hearing do not contain the contents of any discussion or debate concerning the application. Appellant, however, submitted to the district court the affidavit of Mike Dobbs, the Zoning Administrator of Troup County, who attended the meeting. The affidavit stated several members of the public verbally opposed construction of the tower. These individuals apparently opposed the visual obtrusiveness of the proposed tower. The affidavit, however, contained no further information concerning these citizens' objections.

In addition, five petitions, which collectively contained the signatures of 58 individuals, were submitted to the Board. The petitions objected generally to the construction of the tower. All five standard form petitions had three groupings of blank lines: (1) a set of blank lines to write in the purpose of the petition, the opinion being expressed, the property concerned, and the property's specific location; (2) a set of blank lines to write in an explanation of the proposal for which the petition was being circulated; and (3) a set of lines for individuals' full signatures and complete addresses. Despite the presence of these blank lines, only two of the petitions were complete, indicating both the purpose of the petition was to oppose the tower and the proposal for which the petition was circulated was to object to the construction of the tower. The third petition merely noted the location of the proposed tower and indicated the proposal for which the petition was circulated was to object to the construction of the tower. Finally, the fourth and fifth petitions submitted to the Board contained no information other than the signatures and addresses of people who live in LaGrange, Georgia. Other than the five petitions, no evidence objecting to Appellee's construction of the tower exists in the record.

At the conclusion of the hearing, the Board voted unanimously to deny Appellee's request for conditional use approval. Thereafter, in a letter dated June 12, 2000, the Troup County Zoning Department provided written notification to Appellee that the Board denied its application.

On July 11, 2000, Appellee filed suit against Appellant in the United States District Court for the Northern District of Georgia, alleging the denial of its application violated § 704(a) and requesting mandamus relief. In response, Appellant claimed Appellee's action was untimely filed and Appellee had failed to meet the requirements of the zoning ordinance. Subsequently, Appellee requested permission from the district court to amend its petition to add a claim for damages pursuant to 42 U.S.C. § 1983.

Upon review of the written record, the district court held Appellee's action was filed within the statute of limitations. In addition, the court denied Appellee's request to amend its petition. The district court also held the Board violated § 704(a) because its denial of the application for conditional use approval was not supported by substantial evidence. Accordingly, the district court granted summary judgment in favor of Appellee and ordered Appellant to approve the conditional use permit.

B. Background of the Telecommunications Act of 1996

The TCA was enacted "to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition." H.R. Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 124. In addition, the TCA was intended "to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56, 56 (1996). Wireless telephone service was one of the many telecommunications technologies Congress considered when enacting the TCA.

With respect to the construction of telecommunications facilities, Congress recognized zoning decisions by state and local governments had created an inconsistent array of requirements, which inhibited both the deployment of personal communications services and the rebuilding of a digital technology-based cellular telecommunications network. H.R.Rep. No. 104-204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61. Despite this recognition, Congress also acknowledged "there are legitimate State and local concerns involved in regulating the siting of such facilities..., such as aesthetic values and the costs associated with the use and maintenance of public rights-of-way." Id. at 94-95, reprinted in 1996 U.S.C.C.A.N. 10, 61. As a result, Congress enacted § 704(a) to "preserve[ ] the authority of State and local governments over zoning and land use matters except in ... limited circumstances...." H.R. Conf. Rep. No. 104-458 (1996), at 207-08, reprinted in 1996 U.S.C.C.A.N. 124, 222.

In § 704(a), codified at 47 U.S.C. § 332(c)(7),² Congress enunciated a number of substantive and procedural limitations upon the authority of state or local governments to regulate the construction of facilities for wireless communication services. Local zoning authorities may not unreasonably discriminate among providers of functionally equivalent services, may not make zoning decisions which prohibit or effectively prohibit the provision of personal wireless services, and may not make zoning decisions premised on concerns regarding the environmental effects of radio frequency emissions associated with wireless telephone service. 47 U.S.C. §§ 332(c)(7)(B)(i)(I), 332(c)(7)(B)(i)(II), 332(c)(7)(B)(iv) (1994).

To ensure the enforcement of these limitations, Congress delineated the manner in which zoning decisions are to be made and also provided a mechanism for judicial relief for persons aggrieved by decisions inconsistent with § 704(a)'s requirements. §§ 332(c)(7)(B)(iii), 332(c)(7)(B)(v). For example, decisions to deny approval for the placement, construction, or modification of personal wireless service facilities must be both "in writing and supported by substantial evidence contained in a written record." § 332(c)(7)(B)(iii). In addition, if a state or local government acts in a manner inconsistent with § 704(a)'s statutory requirements, any person adversely affected by the action may, "within 30 days after such action ... commence an action in any court of competent jurisdiction." § 332(c)(7)(B)(v). By structuring the TCA in this manner, Congress explicitly preserved local zoning authority over the siting of wireless facilities, while permitting judicial oversight as to the manner in which such decisions are made. §§ 332(c)(7)(A), 332(c)(7)(B)(v).

II. DISCUSSION

Appellant raises the following three issues on appeal: (1) whether Appellee's suit was timely filed; (2) whether the Board's decision to deny the application for conditional use approval was supported by substantial evidence contained in a written record; and (3) whether Appellee was entitled to mandamus relief.³ All three issues involve questions of first impression in this Circuit concerning the application of § 704(a) to local zoning decisions.

A. Timeliness of Appellee's Suit

The TCA provides any party aggrieved by a state or local authority's "final action" may challenge such action, if it is inconsistent with § 704(a)'s requirements, in any court of competent jurisdiction, as long as the challenge is filed within 30 days of the final action. 47...