Dan Helcher v. Dearborn County, Indiana, Boar ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3949
D AN H ELCHER, et al.,
Plaintiffs-Appellants,
v.
D EARBORN C OUNTY, INDIANA
B OARD OF Z ONING A PPEALS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:06-CV-00102-SEB-WGH—Sarah Evans Barker, Judge.
A RGUED O CTOBER 31, 2008—D ECIDED F EBRUARY 9, 2010
Before F LAUM, R OVNER and W OOD , Circuit Judges.
R OVNER, Circuit Judge. Cincinnati Bell Wireless, LLC
(“Bell”) applied for a conditional use permit to construct
a wireless communication facility (essentially, a cellphone
tower) on property owned by Dan and Merry Helcher
2 No. 07-3949
in Dearborn County, Indiana.1 When the local Board of
Zoning Appeals (“Zoning Board” or “Board”) denied the
application, Bell sued the Board and its members for
violating various provisions of the Telecommunications
Act of 1996, 47 U.S.C. § 332(c). The district court granted
summary judgment in favor of the defendants, and
Bell appeals. We affirm.
I.
Bell, a wireless service provider, wanted to close a gap
in cellphone signal coverage on a stretch of Jamison Road
in Dearborn County, Indiana (“County”). The company
sought to build a cellphone tower on the Helchers’ land,
a parcel zoned “Agricultural” under the Dearborn
County Zoning Ordinance (“Ordinance”). Section 315 of
Article 3 of the Ordinance required that Bell obtain a
conditional use permit from the Zoning Board in order to
build the tower at that site. R. 23, Ex. 1, at 1019. Article 15
of the Ordinance regulates the placement, construction
and modification of cellphone towers in order to mini-
mize their “negative impact on the character and environ-
ment of the County and to protect the health, safety
and welfare of the public.” R. 23, Ex. 2, at 1023. Article 9
of the Ordinance governs the use of land zoned Agri-
cultural and allows non-agricultural uses (including
the construction of telecommunications towers) under
1
For the sake of brevity, we will refer to the plaintiffs collec-
tively as “Bell.” Their interests in the appeal are, for the
most part, aligned.
No. 07-3949 3
certain circumstances.2 The County employed two con-
sultants to assist the Zoning Board in making decisions
related to cellphone towers. Dick Comi of the Center for
Municipal Solutions (“CMS”) and Ron Ebelhar of H.C.
Nutting Company (“Nutting”) worked for approxi-
mately twenty months with Bell in preparing the ap-
plication for a permit to build the tower. CMS and
Nutting had assisted the Zoning Board in reviewing
twelve previous conditional use permit applications
relating to wireless facilities.
As required under the Ordinance, Bell engaged in a pre-
application meeting with Ebelhar to discuss the pro-
posed tower. At that August 11, 2004 meeting, Ebelhar
identified eighteen requirements that Bell needed to
address in order for its application to comply with the
Ordinance. The plaintiffs claimed to work diligently to
meet all of the relevant requirements, and on February 9,
2005, they submitted their application to Comi and
Ebelhar for review. Comi responded on February 25, 2005,
with a letter detailing fifteen insufficiencies with the
application. Some of the items were simple documentary
requirements such as signatures from land owners, and
some concerns were more substantive calls for addi-
tional calculations, assessments, and reports. Bell pro-
vided supplemental information to the consultants
2
The text of Article 9 was not included in the record on appeal,
but was included in the County’s appendix. The Ordinance in its
entirety may be viewed at www.dearborncounty.org/planning/
Official_Documents.htm (last visited Jan. 12, 2010).
4 No. 07-3949
many times over the next several months in order to
address the concerns raised in Comi’s letter. Bell also
made substantive changes to the plan, such as reducing
the height of the tower from 250 to 190 feet, in order to
eliminate the need to comply with the Federal Aviation
Administration’s requirements for lighting the tower.
The revised plan also moved the tower further from
the property line to comply with setback requirements.
The consultants asked Bell to demonstrate that it could
not “co-locate” the transmitters, that is, use already
existing towers to provide coverage for Jamison Road.
Bell investigated four existing wireless tower structures
and rejected all of them as inadequate to provide the
needed coverage. On January 23, 2006, Comi sent a letter
to the County’s Plan Commission stating that the con-
sultants had completed their review of the application
and recommended granting the conditional use permit
to construct the tower on the Helchers’ property.
The Zoning Board met on March 14, 2006 to consider the
application. Ebelhar reported the findings of his review
of the application and opined that Bell and the Helchers
had met the requirements necessary to construct the
tower, and that the Zoning Board should grant the per-
mit. In every prior permit application for wireless coverage
reviewed by the consultants, the cellphone carrier had been
required to co-locate its transmitters on existing structures.
This was the first instance since the inception of the
Ordinance in which the consultants recommended that the
Zoning Board allow construction of a new tower. A Board
member asked Ebelhar about the visual impact of the
tower, and he stated that it was the least intrusive tower
No. 07-3949 5
possible that would provide the needed service. Another
Board member asked for clarification on who had per-
formed the technical studies to determine whether the
tower was necessary and Ebelhar confirmed that Bell had
done the work and that Ebelhar’s company had reviewed
those studies.
A number of landowners who opposed the building
of the tower spoke at the meeting to express their con-
cerns about the visual impact of the tower and its detri-
mental effect on property values. A real estate appraiser
addressed property values and concerns regarding poten-
tial hazards to children presented by the proposed
tower. A community planner opined at the hearing that
the plaintiffs had not met the requirements of the Ordi-
nance because they had not provided a Visual Impact
Assessment as required by paragraph 23 of Section 1512
of the Ordinance. The Zoning Board also considered a
report filed by Wireless Applications Corporation, a
consulting firm hired by two landowners, Karen and
David Cody. The report conceded that the proposed
tower would provide the desired coverage on Jamison
Road but suggested that other sites could deliver
superior service with a smaller impact on the sur-
rounding community. An engineer from Bell rebutted
that claim by noting that the tower height was necessary
to provide adequate coverage and that Bell had reviewed
and rejected as inadequate four alternate sites for the
tower.
After the testimony, Zoning Board member Patricia
Baker moved to deny the application for a special use
6 No. 07-3949
permit. By a vote of three to one, the Zoning Board denied
the application. At the May 2006 meeting of the Zoning
Board, many disputes arose during the process to
approve the minutes of the March meeting. Members of
the Zoning Board, representatives of Bell and the Helchers,
and objecting landowners all suggested numerous revi-
sions to the minutes. Unable to agree on many points, the
Board tabled approval of the minutes until the next
meeting. In early June 2006, the plaintiffs asked the
Board not to approve the revised minutes and also re-
quested that the Board reconsider its decision to deny
the permit application. At the June meeting, the Board
approved the minutes as revised (“Minutes”) and denied
the plaintiffs’ request to reconsider the denial of the
permit application.
The next month, Bell and the Helchers filed a com-
plaint against the Board and its individual members,
alleging several violations of the Telecommunications
Act of 1996, 47 U.S.C. § 332(c) (the “Act”). Count I alleged
that the Board’s decision was not based on substantial
evidence contained in a written record, as required by 47
U.S.C. § 332(c)(7)(B)(iii). Count II asserted that the ap-
proved Minutes of the March 14, 2006 Zoning Board
meeting did not constitute a sufficient written decision as
required by 47 U.S.C. § 332(c)(7)(B)(iii). In Count III, the
plaintiffs contended that the Zoning Board’s decision
unreasonably discriminated against Bell, in violation of
47 U.S.C. § 332(c)(7)(B)(i)(I). Count IV maintained that the
Zoning Board’s decision had the effect of denying the
provision of wireless communication services, in viola-
No. 07-3949 7
tion of 47 U.S.C. § 332(c)(7)(B)(i)(II). Counts V though IX,
which are not at issue in this appeal, alleged violations
of the Constitution and the civil rights of the applicants.
The district court granted the defendants’ motion for
partial summary judgment on the first four counts of
the complaint. Helcher v. Dearborn County, 500 F.Supp.2d
1100 (S.D. Ind. 2007). The court rejected the plaintiffs’
claim that the Zoning Board Minutes were an inaccurate
recording of what went on during the meeting and that
the Minutes were not adequate to meet the Act’s require-
ment that the decision be “in writing.” The court found
that a written decision was adequate so long as it
informed the applicant of the local government’s
decision denying the application. In this instance, the
court found, the meeting Minutes fulfilled this require-
ment because the Minutes enabled the court to efficiently
judge the Board’s findings and conclusions against the
record. The court also noted that the Minutes supplied
the reasons underlying the Zoning Board’s decision
by noting the sections of the Ordinance which the appli-
cants failed to satisfy. The court found that the Minutes
allowed for meaningful judicial review of the decision,
and that no more was required by the Telecommunica-
tions Act. The court also found that the Zoning Board’s
decision was supported by substantial evidence, that
the denial of the permit did not effectively prohibit the
provision of wireless service, and that the Zoning Board
did not unreasonably discriminate among wireless
service providers. Bell appeals.
8 No. 07-3949
II.
On appeal, Bell argues that the Zoning Board’s decision
does not comply with the “in writing” requirement of the
Telecommunications Act, that the Board’s decision is not
supported by substantial evidence, that the denial of the
permit effectively prohibits Bell from providing wireless
communication services, and that the Zoning Board’s
decision unreasonably discriminated among wireless
providers, all in violation of 47 U.S.C. § 332(c)(7). Before
we address the merits of the arguments, we are obliged
to address our jurisdiction. The defendants sought and
the district court granted partial summary judgment in
favor of the defendants on Counts I through IV of the
complaint. As we mentioned above, the plaintiffs pled
an additional five counts (Counts V through IX) alleging
violations of the Constitution and of their civil rights.
After the court entered its order granting partial sum-
mary judgment, the parties filed a “Joint Motion for Final
Judgment.” R. 47. In that motion, the parties expressed
a “desire to [a]ppeal the Entry without the need to
litigate their remaining claims at this time.” R. 47, at 1.
The plaintiffs agreed to dismiss without prejudice the
remaining counts in exchange for a promise from the
defendants to waive any statute of limitations defense
if the plaintiffs later moved to reinstate those claims.
The district court then entered a judgment dismissing
Counts V through IX without prejudice and dismissing
Counts I through IV with prejudice for the reasons
stated in the court’s earlier order granting partial sum-
mary judgment. The court stated that its earlier order
No. 07-3949 9
was “now made a final and appealable Judgment there
being no just cause for delay in its entry.” R. 49, at 1.
On appeal, both parties asserted that we have jurisdic-
tion under 28 U.S.C. § 1291, which allows us to decide
appeals of “all final decisions of the district courts of the
United States[.]” The parties’ agreement that “a judicial
determination is a final decision (and thus appealable
under Section 1291), does not make it so.” ITOFCA, Inc. v.
MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000).
We have an independent obligation to determine our
jurisdiction. Id. Whether a decision is final for the pur-
poses of Section 1291 depends on whether the decision by
the district court ends the litigation on the merits and
leaves nothing for the court to do but execute the judg-
ment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978);
ITOFCA, 235 F.3d at 363. In this case, the court and the
parties expressly reserved to the plaintiffs the right to
reinstate Counts V through IX after the appeal. Thus,
the judgment did not resolve the litigation on the merits,
and Section 1291 may not supply jurisdiction.
Although the district court did not expressly invoke
Federal Rule of Civil Procedure 54(b), the court’s
language tracks that rule, which allows entry of a final
judgment on fewer than all of the claims “only if the
court expressly determines that there is no just reason
for delay. Otherwise, any order or other decision, how-
ever designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims
or parties and may be revised at any time before the
10 No. 07-3949
entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).
We need not determine whether the judgment was prop-
erly entered under Rule 54, however, because after we
raised this issue at oral argument, the parties entered a
joint stipulation dismissing Counts V though IX with
prejudice. That stipulation “wind[s] up the litigation
and eliminat[es] the bar to our jurisdiction.” JTC Petroleum
Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 776-77 (7th
Cir. 1999). We proceed then to the merits of the appeal.
A.
The Act requires 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). Bell and the Helchers contend
that the Zoning Board’s decision does not comply
with the Act’s requirement that the decision must be “in
writing.” What is necessary for an adequate writing
under the Telecommunications Act is an issue of first
impression in our circuit.3 There are differing views
among the circuits as to what constitutes an adequate
3
Although the Seventh Circuit has yet to rule on the “in
writing” requirement, our own Judge Cudahy considered the
question when sitting by designation on the Ninth Circuit.
See MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d
715, 721-23 (9th Cir. 2005) (Cudahy, J., writing for the panel).
We are greatly aided by his analysis.
No. 07-3949 11
writing. See MetroPCS, Inc. v. City and County of San Fran-
cisco, 400 F.3d 715, 721-23 (9th Cir. 2005) (noting the
circuit split on the issue); New Par v. City of Saginaw, 301
F.3d 390, 395 (6th Cir. 2002) (collecting the views of
several courts); Southwestern Bell Mobile Sys., Inc. v. Todd,
244 F.3d 51 59 (1st Cir. 2001) (noting the broad range of
interpretations of the “in writing” requirement in the
district and circuit courts). Some courts require that local
governments explicate the reasons for their decisions and
link their conclusions to specific evidence in the record.
Omnipoint Commc’ns, Inc. v. Planning & Zoning Comm’n
of Wallingford, 83 F.Supp.2d 306, 309 (D. Conn. 2000) (“[a]
local zoning authority must issue a decision in writing
setting forth the reasons for the decision and linking
its conclusions to evidence in the record”); Illinois RSA
No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 743 (C.D.
Ill. 1997) (the terms “in writing” and “written record”
“plainly require the state or local governments to issue
decisions regarding personal wireless service facilities
in written form, stating the reasons for the decision,
and providing written evidence or a written record of
the proceedings that led to the government entity’s deci-
sion”). On the other end of the spectrum is the Fourth
Circuit, which accepted as adequate a stamp of the
word “DENIED” on a zoning permit application. AT&T
Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjust-
ment, 172 F.3d 307, 312-13 (4th Cir. 1999) (writing the
word “denied” on the face of an application to build
a wireless communications tower is adequate to meet the
“in writing” requirement); AT&T Wireless PCS, Inc. v. City
Council of Virginia Beach, 155 F.3d 423, 429-30 (4th Cir.
12 No. 07-3949
1998) (finding that the “in writing” requirement was met
by both the condensed minutes of a council meeting
considering an application for a permit to build a tele-
communications tower, and by the word “denied”
stamped on a letter from the planning commission des-
cribing the application). In the latter case, the Fourth
Circuit specifically rejected the contention that the
writing must include a statement of “findings and con-
clusions, and the reason or basis therefor.” Virginia
Beach, 155 F.3d at 430.
In the middle are courts that strike a balance between
a dubious, literal reading of the Act and a pragmatic,
policy-based approach. The purpose of the “in writing”
requirement is to allow for meaningful judicial review
of local government actions relating to telecommunica-
tions towers. USCOC of Greater Missouri v. City of
Ferguson, MO, 583 F.3d 1035, 1041 (8th Cir. 2009) (holding
that the central concern of the “in writing” requirement
is to enable effective judicial review of local government
action); MetroPCS, 400 F.3d at 722 (Cudahy, J., sitting
by designation) (same); New Par, 301 F.3d at 395-96(same); Todd, 244 F.3d at 60 (same). The First Circuit
found that there was no textual basis for requiring
formal findings of fact and conclusions of law. Todd, 244
F.3d at 59. The court noted that local zoning boards are
primarily staffed by laypersons and it would not be
realistic to expect highly detailed findings of fact and
conclusions of law. Id. On the other hand, the Todd court
remarked, permitting local zoning boards to issue
denials that offered no reasons for the decision would
frustrate meaningful judicial review. Todd, 244 F.3d at 60.
No. 07-3949 13
The First Circuit therefore concluded that the written
decision “must contain a sufficient explanation of the
reasons for the permit denial to allow a reviewing court
to evaluate the evidence in the record supporting
those reasons.” Todd, 244 F.3d at 60. The Sixth Circuit
followed suit in New Par, requiring that a decision of a
local government denying a request to place, construct
or modify a wireless tower must describe the reasons for
the denial and contain a sufficient explanation of those
reasons to allow a reviewing court to evaluate the
evidence in the record that supports those reasons. New
Par, 301 F.3d at 395-96. See also Sprint Spectrum, L.P. v.
Platte County, MO, 578 F.3d 727, 732 (8th Cir. 2009) (as-
suming without deciding that the correct standard for
the “in writing” requirement is the one expressed in
MetroPCS, New Par, and Todd).
We join the First, Sixth and Ninth Circuits, the major-
ity of the courts that have reached this issue. The “in
writing” requirement is met so long as the written decision
contains a sufficient explanation of the reasons for the
permit denial to allow a reviewing court to evaluate the
evidence in the record supporting those reasons. This
standard is not unlike our Circuit Rule 50, which
requires district judges to provide reasons for decisions
that resolve any claim on the merits or terminate the
litigation. Circuit Rule 50 “serves three functions: to
create the mental discipline that an obligation to state
reasons produces, to assure the parties that the court has
considered the important arguments, and to enable a
reviewing court to know the reasons for the judgment.”
DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990). As
14 No. 07-3949
we discussed above, the primary purpose of the “in
writing” requirement for the Telecommunications Act is
to allow for meaningful judicial review of the decisions
of local governments. Keeping in mind that local zoning
boards typically are not populated with lawyers much
less judges, we cannot expect something akin to a
judicial opinion. Therefore, a decision “in writing” is
adequate if it provides an explanation that allows us, in
combination with the written record, to determine if
the decision is supported by substantial evidence.4
With that standard in mind, we turn to the decision
issued by the Zoning Board. The “writing” issued by the
Board is the seventeen-page “Zoning Board of Appeals
Minutes” for the March 14, 2006 meeting (the same Min-
utes we referenced earlier). Because the contents of the
Minutes will also be relevant to whether the decision
was supported by substantial evidence, a question we
consider below, we will recount the Minutes in some
4
Not every failure to meet the standard set in Circuit Rule
50 requires remand. See United States v. Forman, 553 F.3d 585,
590-91 (7th Cir.), cert. denied, 129 S. Ct. 1924 and 129 S. Ct. 2817(2009) (noncompliance with Circuit Rule 50 does not always
prevent judicial review because the district court’s reasoning
may be apparent from the record); Stoller v. Pure Fishing Inc.,
528 F.3d 478, 480 (7th Cir.), cert. denied, 129 S. Ct. 609 (2008)
(no remand for compliance with Circuit Rule 50 is necessary
when the district court’s reasoning is clear from both the
record and the court’s brief statement). Similarly, not every
failure to meet the standard we have set for the “in writing”
requirement will require reversal or remand.
No. 07-3949 15
detail. The discussion of Bell’s application began with
the Zoning Board’s Enforcement Officer describing the
Helchers’ land and setting forth the criteria to be used
to evaluate the requested permit (including Articles 3 and
15 of the Ordinance). The Enforcement Officer also re-
viewed a Staff Report and Site Plan (both of which were
attached to the Minutes and included in the record), and
presented the results of a balloon test at the property.
Ebelhar, the consultant hired by the Zoning Board, then
presented his recommendation that the permit be ap-
proved. Ebelhar opined that the applicants had met the
criteria for constructing the tower, and that the tower
was needed to close a gap in coverage. Steve Carr, a
representative of Bell, then testified that co-location was
not possible in this instance, that the tower would be
safe, that little traffic would be generated by the tower,
that there was no way to hide the structure from view, that
the site would not encroach on private property, and that
the tower would operate within FCC requirements. In
response to questions from Board members, Carr also
testified that the site was chosen because it was
high enough to overcome issues with tree foliage and
winding roads, that other sites were not adequate, that
the tower presented no health-related risks linked to
tower transmissions, and that the reduced 190-foot
height of the tower would be adequate even though a 220-
foot tower would be optimal. Another Bell representative
confirmed that Jamison Road coverage was the primary
objective of the tower, and that this road was heavily
traveled.
16 No. 07-3949
The Minutes next detailed the objections of David and
Karen Cody, residents of a subdivision situated adjacent
to the area where the proposed tower would be con-
structed. The attorney for the Codys submitted a written
statement and introduced a community planner and
professional property appraiser, both of whom testified
later in the hearing. The Codys, through their attorney,
did not dispute the quality of the signal on Jamison Road,
the structural integrity of the proposed tower, or the
fact that the Helchers’ property had no particular
historical significance. The Codys’ attorney instead con-
tested the qualifications of Nutting to study, review and
report on technical issues such as propagation maps. She
also asserted that the Act required a wireless provider
to demonstrate that the gap in coverage existed not for
one provider but for all providers. She contended that
the Act required wireless providers to prove that they
are filling gaps in the least intrusive manner by looking
at all alternatives and ruling out other options. She also
noted that the Act allowed local governments to
regulate the placement of towers, taking into account
construction, location, aesthetic requirements, visual
judgments and the effect on property values. The Codys,
representing a large number of residents in the area of
the proposed tower, presented photographs of several
properties, showing what the tower would look like
from many nearby residences. They opined that the
tower would be in the most visually intrusive location
possible, and presented software-enhanced photographs
based on those taken during Bell’s balloon test, modi-
fied to show a scaled, graphical representation of the
No. 07-3949 17
proposed tower. After the Codys expressed their fear that
their property value would decrease significantly, eight
other residents spoke about their fears that the tower
would reduce their property values, change the character
of the neighborhood, and be visually intrusive. The
residents also questioned the necessity for the tower,
whether co-location had been adequately considered,
and whether the loss in property values would also
result in a loss to the county tax base.
The Codys’ attorney then proffered additional objec-
tions to the issuance of the permit. First, she asserted
that Bell had failed to submit a completed application
prior to the agenda deadline for the meeting. Second, she
maintained that the Zoning Board should not accept new
information submitted by the applicant at the meeting.
Third, she noted that although Bell had adequate time
to complete its application and supply all information
required by the Ordinance, the company had failed to do
so. She alleged that the application was inaccurate or
incomplete on its face because the property owners
had not signed it, because the proposed lease between
the Helchers and Bell was not signed by Bell and thus
Bell had no property interest in the area, and because
Bell’s agent signed as “Applicant” in violation of the
certification on the face of the application. She asserted
that the application did not meet the requirements and
purposes of Article 15. In particular, aesthetic consider-
ations had been largely ignored. Bell had not responded
to a request for information from the County’s agent
about the necessity of the tower, in violation of Para-
graph 1 of Section 1512. Moreover, the application failed
18 No. 07-3949
to meet the requirement of Section 1512, Paragraph 7,
requiring the applicant to show the location of the
nearest resident. The application also failed to conform
to Section 1512, Paragraph 21, which required a written
report demonstrating meaningful efforts to secure
shared use of towers or the use of alternative buildings
or structures.
She noted that the application did not explain why an
agricultural site was needed, given that Section 1514 of
the Ordinance required applicants to demonstrate why
seven other categories of property were inadequate
before agricultural land could be employed for this pur-
pose. She also remarked that Section 1514 required the
applicant to prove that the cell tower was not harmful
to the nature and character of the neighborhood or com-
munity, and stated that the residents’ objections demon-
strated that the applicants had not met this provision.
The Codys’ attorney also presented the report of Wire-
less Applications Corporation, a consulting firm con-
tacted by the Codys. Wireless Applications reviewed
Bell’s application and concluded that the Helchers’ prop-
erty did not serve the best interest of the community.
The consultant suggested alternate sites for the tower
and also recommended that the tower height could be
reduced to 150 feet with a negligible difference in
signal coverage.
The certified real estate appraiser introduced by the
Codys’ lawyer testified that, in his opinion, the proposed
tower would negatively impact property values, al-
though he conceded he could not predict the degree
of impact. The community planner then testified that the
No. 07-3949 19
applicants failed to meet the standards in Article 15,
Section 1512, Paragraph 23, which required the ap-
plicants to submit an environmental impact assessment,
including a visual impact assessment that analyzed the
visual effect on adjoining properties. In fact, the visual
impact assessment submitted did not acknowledge that
the tower would be visible from residential areas but
instead indicated it was adjacent to undeveloped
wooded land.
At the end of all testimony, each of the five members
of the Zoning Board spoke about the application. The
Chair, Jim Deaton, remarked that the application did not
comply with Article 3, Section 315, items (b) and (d),
which concerned the effect of the tower on the appear-
ance and character of the surrounding area, as well as
the normal and orderly development and improvement
of surrounding property. Board member Jake Hoog con-
curred with the Chair’s assessment that the applica-
tion did not comply with Article 3, Section 315(b). Board
member Patricia Baker agreed that the placement of the
tower would impede the development and improvement
of surrounding properties in violation of Section 315(d).
Board member Mike Hall questioned whether Bell had
in fact considered other areas for placement of the tower.
The final Board member, Jane Ohlmansiek, asserted
that, although the tower would not adversely affect
the surrounding area in some respects, it would not be
harmonious to the existing development of surrounding
properties. She also opined that the applicants had not
presented an adequate visual impact study to the Zoning
Board.
20 No. 07-3949
At the conclusion of all discussion, Zoning Board mem-
ber Baker moved to deny the application for the condi-
tional use permit to construct the tower at the Helchers’
property because of the applicants’ noncompliance
with Article 3, Sections 315(b) and 315(d); and Article 15,
Section 1514, subparagraph 5 of the Ordinance:
Ms. Baker then made a motion to deny the applica-
tion for the Conditional Use request to establish a
wireless telecommunications facility on Losekamp
Road as a result of the Applicant’s noncompliance
with the following ordinances: Article 3, Section 315,
Item b, which states that the facility will be designed,
constructed, operated, and maintained so as to be
harmonious and appropriate in appearance with
the existing or intended character of the general
vicinity and which shall not change the essential
character of the area; Article 3, Section 315, Item d,
which states that the facility will not impede the
normal and orderly development and improvement
of the surrounding property for uses permitted in
the district; and Article 15, Section 1514, Sub 5 in
which the Applicant conflicted with the provisions of
the Zoning Ordinance by failing to adequately illus-
trate that all other hilltops and potential sites in
the area had been investigated.
R. 23, Ex. 28, at 1706. Three members of the Board voted
in favor of the motion and one opposed it. The Chair did
not vote because the Board’s rules permit the Chair to
vote only to break a tie. The motion passed and the
permit was denied.
No. 07-3949 21
The question is whether the Minutes, which we have
just summarized, present an adequate basis for judicial
review of the Board’s decision. We find that the Minutes
are sufficient for that purpose. Our task on appeal is to
determine whether substantial evidence in the record
supports the Board’s decision. 47 U.S.C. § 332(c)(7)(B)(iii).
The Minutes clearly delineate the issues that arose with
the application, the evidence that was presented by
both the applicants and by the residents to the Zoning
Board, the concerns of the applicants and residents of
the area, and the concerns of the Board members. The
Minutes also cite the specific provisions of the Ordinance
that the majority of the voting members found were not
met by the application. The Minutes thus provide an
explanation that allows us, in combination with the
written record, to determine if the decision is supported
by substantial evidence. See MetroPCS, 400 F.3d at 722;
Todd, 244 F.3d at 60. In fact, the Minutes provide a great
deal of detail about the evidence and the applicable
Ordinance provisions. See Platte County, 578 F.3d at 732(finding a written decision adequately explained that
it was rejecting a proposed tower for aesthetic reasons
where the decision explained that the local government
objected to the tower because its size, location and rela-
tionship to the surrounding screening and landscape
were such that the tower would dominate the immediate
neighborhood so as to prevent development and use
of neighboring property); MetroPCS, 400 F.3d at 723(affirming that a decision met the “in writing” requirement
when it summarized the facts of the dispute, recounted
the proceedings, articulated the reasons for rejecting
22 No. 07-3949
an application and explained the evidentiary basis for
the ruling); New Par, 301 F.3d at 396 (finding a decision
did not meet the “in writing” requirement when it
did not contain any explanation of the reasons for the
denial but simply stated the request was denied “based on
the facts presented and the Board’s determination”); Todd,
244 F.3d at 60 (finding adequate a written decision that
“offers little explanation and few facts” because the
reasons were stated with sufficient clarity to permit an
assessment of the evidence in the record supporting
the reasons). On the threshold question of whether the
Minutes met the “in writing” requirement, we con-
clude that the Minutes met the standard we set forth
above.
B.
Bell and the Helchers next contend that the Zoning
Board’s decision denying their application for a con-
ditional use permit was not supported by substantial
evidence. Recall that the Telecommunications Act
requires that “[a]ny decision by a State or local govern-
ment 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 substantial evidence standard is
highly deferential to the local government making the
decision. VoiceStream Minneapolis, Inc. v. St. Croix County,
342 F.3d 818, 830 (7th Cir. 2003). We apply the same test
for substantial evidence under the Telecommunications
No. 07-3949 23
Act that we apply in our review of the decisions of admin-
istrative agencies. PrimeCo Personal Commc’ns, L.P. v. City
of Mequon, 352 F.3d 1147, 1148 (7th Cir. 2003); VoiceStream,
342 F.3d at 830. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” VoiceStream, 342 F.3d at 830(quoting Aegerter v. City of Delafield, WI, 174 F.3d 886, 889
(7th Cir. 1999)). The party seeking to overturn the local
zoning board’s decision has the burden of proving that
the decision is not supported by substantial evidence.
VoiceStream, 342 F.3d at 830. We have found that there is
no practical difference between the substantial evidence
standard and the clear error standard, and so the relevant
question is whether the Zoning Board clearly erred in
refusing to issue the permit. PrimeCo, 352 F.3d at 1149. The
Zoning Board rejected the plaintiffs’ application for
a conditional use permit because the application did not
comport with three provisions of the Ordinance.
In particular, the Zoning Board found that the applica-
tion did not satisfy Article 3, Sections 315(b) and (d),
and Article 15, Section 1514(5). We will examine, in
turn, what evidence in the record supported the Board’s
decision as to each of these provisions.
1.
Section 315(b) states that the Board has the power to
authorize a conditional use permit so long as the condi-
tional use “[w]ill be designed, constructed, operated, and
maintained so as to be harmonious and appropriate in
appearance with the existing or intended character of
24 No. 07-3949
the general vicinity and shall not change the essential
character of the same area.” R. 1, Ex. B, at 9. Although
local governments are entitled to weigh the aesthetic
effect of a wireless tower in deciding whether to permit
its construction, generalized aesthetic concerns are not
alone sufficient to justify a denial of a permit. PrimeCo, 352
F.3d at 1150. See also VoiceStream, 342 F.3d at 831 (because
few people would argue that telecommunications towers
are aesthetically pleasing, a local zoning board’s aesthetic
judgment must be grounded in the specifics of the case).
A blanket opposition to poles, for example, would not
be sufficient evidence for denying the construction of a
wireless facility disguised as a pole. Id. A reasonable
decision whether to approve a permit to construct a
cellphone tower requires the local government to
balance the contribution the tower would make to the
availability of cellphone service against the detriments
the tower presents to the surrounding community.
PrimeCo, 352 F.3d at 1149. The complaints made by
local residents in this case are representative of the
downsides towers present. They often are perceived as
unsightly and are blamed for reducing property values.
Although the statute prohibits as a consideration
the fear of adverse health effects of electromagnetic
radiation from the towers, a local government may con-
sider other safety factors, such as the harm to the environ-
ment, the obstruction of vision, and the risk of a tower
falling due to wind or ice. PrimeCo, 352 F.3d at 1149.
Bell again points to the experts’ opinion that there was
no less visually intrusive location on which to place the
tower as an indication that the Board’s findings
No. 07-3949 25
under Section 315(b) were not supported by substantial
evidence. Bell discounts the photo simulations presented
by the Codys and other residents as “generalized” objec-
tions to towers. Bell conducted a “balloon test” at the
proposed site and provided photographs to the Board. A
large helium balloon was floated to the height of the
proposed tower and photographs were taken at various
distances and angles. The Codys then used those photo-
graphs to extrapolate views of the tower from their prop-
erty and from other nearby residences and farms. The
Codys presented these photo mock-ups to demonstrate
to the Board that the tower was not harmonious in charac-
ter to the surrounding area. Many of the nearby home-
owners also wrote letters to the Board protesting the
impact of such a structure on the scenery and on their
property values. Bell and the Helchers provided photos
taken largely from public roads but the Codys and other
nearby residents presented views of the tower and the
balloon test from farms and residences nearby. R. 23, at
1465, 1491-1495, 1501-1563. In the Codys’ altered photos,
the tower rises up like a nineteen-story Martian machine
from H.G. Wells’ “War of the Worlds,” marring a land-
scape of forests and farms. The tower is not in any way
disguised to resemble a more palatable structure, but
stands out alone as an industrial blemish on an other-
wise bucolic landscape. It is remarkably out of scale to
any surrounding structures. Of course, Bell argues that
the height is necessary given the topography of the
county, and also contends that the company reduced the
height of the tower as much as possible without
degrading the signal.
26 No. 07-3949
The photographic representations of the tower as
viewed from the property of the Codys and other neigh-
bors, accompanied by the objections of many residents
who purchased land and built homes in this area specifi-
cally because of the natural views, provided the Zoning
Board with substantial evidence to reject the permit as non-
conforming with Section 315(b). The Zoning Board
weighed the value of closing a signal gap for one wire-
less provider along a stretch of road against the aesthetic
effect this tower would have on this largely rural
setting and found that this tower at this location was not
harmonious with the appearance or intended character
of the area.
As we discuss below, Bell had not satisfied the Board
that it had adequately considered placing the tower on
land zoned for manufacturing, business, or for high-
way interchanges. It is not surprising that a 190-foot
industrial-looking tower would not be harmonious with
an agricultural setting, and that is likely one of the rea-
sons that the Ordinance insists that wireless providers
consider seven other categories of zoned property
before resorting to placement on agricultural land. Bell
compares the Board’s rejection of the permit to the
city’s rejection in PrimeCo. But in PrimeCo, the citizens
objected to placement of a tower disguised as a flagpole
in an area where industrialized land uses were
permitted, and where there was no evidence that the
height of the pole (70 feet in that instance) was out of
character for the area. Moreover, the city had suggested
instead disguising the tower as a light pole and moving
it to a different location, even though there was no evi-
No. 07-3949 27
dence that a light pole was any less unsightly than the
proposed flag pole and no evidence that the light pole
would be less visible than the flag pole. PrimeCo, 352
F.3d at 1150-51.
The circumstances here more closely resemble those
of VoiceStream, where the local government denied a
permit to build a tower near a scenic river way. We noted
that the county’s determination that the proposed tower
would adversely affect the aesthetic harmony of the
river way was grounded in the specifics of the case and
was not based on conjecture or speculation. Rather it
was based on an on-site investigation and a map
prepared from the wireless carrier’s crane test, docu-
menting how visible the tower would be from various
nearby locations. VoiceStream, 342 F.3d at 832. Persons
who viewed the crane test, which was similar to the
balloon test in the instant case, testified to the negative
impact the tower would have. This testimony and the
map prepared from the crane test provided substantial
evidence to support the county’s decision to deny the
permit for the tower. Id. Although the Helchers’ property
is admittedly not on a National Scenic Riverway, it is in
a picturesque rural area where a 190-foot structure
would rise high above the tree line, completely out of
character with any other natural or man-made structure
in the vicinity.5 We conclude therefore that substantial
5
We note that the Helchers own and operate a commercial
storage building on their property, and are authorized to
(continued...)
28 No. 07-3949
evidence supported the Board’s decision to reject the
permit on this ground. See Sprint PCS Assets, L.L.C. v. City
of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009)
(holding that a board’s decision to reject a permit on
aesthetic grounds was supported by substantial evidence
where the evidence included propagation maps, mock-ups
of the proposed tower, a report on the aesthetic values
at stake, public commentary and a presentation from the
wireless carrier); Platte County, 578 F.3d at 733 (finding
that a visit to the proposed tower site, an aerial map
indicating surrounding homes and the residential
character of the area, letters from three nearby residents,
and simulated pictures of the proposed 153-foot tower
supplied substantial evidence to support a decision
rejecting a tower for aesthetic reasons); T-Mobile USA, Inc.
v. City of Anacortes, 572 F.3d 987, 994 (9th Cir. 2009) (ob-
jections by residents that a monopole would have a
detrimental impact on surrounding residential property,
that the pole would not be completely screened, and
that it would interfere with scenic views provided sub-
stantial evidence supporting a denial of a permit to build
the pole); Omnipoint, 430 F.3d at 534 (holding that a
local zoning board has discretion to rely on the aesthetic
objections raised by neighbors who know the local
terrain and the sight lines of their own homes, and may
5
(...continued)
build up to twenty-two storage spaces, each eleven feet by
eleven feet in size. A relatively small commercial storage
building of limited height is far less visible to neighbors than
a 190-foot tower.
No. 07-3949 29
reject aesthetic opinions of experts whose study included
only views from public areas and not from residents’
property).
2.
Section 315(d) similarly empowers the Board to issue
a conditional use permit if the use “[w]ill not impede
the normal and orderly development and improvement
of the surrounding property for uses permitted in the
district.” R. 1, Ex. B, at 9. The Codys testified that they
halted construction on an addition to their home when
they learned that the tower might be built nearby. A real
estate appraiser testified that the tower would have a
detrimental effect on land values, although he could not
offer any specific measure of the predicted downward
trend. This is the thinnest part of the county’s case, and
this factor alone may not have provided substantial
evidence for the decision to deny the permit. We need not
decide what would be needed to meet the substantial
evidence standard in this instance, though, because
the county’s conclusion that the tower would be incom-
patible with the appearance and character of the area
and its conclusion that the plaintiffs had failed to ade-
quately investigate other kinds of zoned land were sup-
ported by substantial evidence.
3.
Section 1514(5) provides that the County may disap-
prove an application that, among other things, “[c]onflicts
30 No. 07-3949
with the provisions of this Ordinance.” R. 23, Ex. 2, at
1033. Section 1514 supplies a list of nine categories of
property on which wireless transmitters may be placed, in
the order of the County’s preference. The County prefers,
in order from most to least favored, that transmitters
be placed (1) on existing towers or structures without
increasing the existing height of those towers or struc-
tures; (2) on property zoned Manufacturing Three; (3)
on property zoned Manufacturing Two; (4) on property
zoned Manufacturing One; (5) on property zoned
Highway Interchange; (6) on property zoned General
Business; (7) on property zoned Restricted Business;
(8) on property zoned Agricultural; and (9) on property
zoned Residential. R. 23, Ex. 2, at 1032. The Helchers’
property was zoned Agricultural, second to the last on
the County’s list of preferences. Only residential neigh-
borhood placement is more offensive to the County’s
stated values than the location selected by the plaintiffs
here. Section 1514 requires applicants seeking to place
towers on lower priority land (such as Agricultural
land) to submit a detailed explanation as to why a higher
priority site was not selected. R. 23, Ex. 2, at 1032-33.
Although Bell arguably has explained why co-location
was not possible in this instance, the company has not
provided a detailed explanation regarding land categories
(2) through (7) above.6 As the district court noted, the
6
The application considers each possible co-location site and
explains why it is inadequate to provide coverage for Jamison
(continued...)
No. 07-3949 31
plaintiffs did not explain why a transmitter could not be
constructed on property zoned Manufacturing One, Two
or Three; Highway Interchange; General Business or
Restricted Business. Instead, the plaintiffs simply
recited boilerplate claims in their application for each
of these preferred categories of zoned property:
Within or in reasonable proximity of the search area
where new antennae is [sic] required to provide
complete and competitive coverage there exists no
property zoned [zoning designations (2) through (7)]
that accommodates the RF engineering requirements
of the proposed Cincinnati Bell Wireless network
expansion.
R. 23, Ex. 10, at 1309-10. As the district court noted, these
“generic, nonspecific statements are unsupported by
any explanation, evidence of investigation, or other
description indicating that credence is to be granted to
Plaintiffs’ claims that all other sites were adequately
investigated.” Helcher, 500 F.Supp.2d at 1117.
Bell and the Helchers continue to rely on these unsup-
ported statements on appeal. Bell characterizes its
conclusory statements as “uncontradicted evidence” that
Bell “has investigated all feasible alternate locations,” and
faults the Board for failing to offer alternate sites. Appel-
lant’s Brief at 21. This is nothing more than an attempt
6
(...continued)
Road. The Board rejected the application, in part, because
Bell failed to show that six other preferred categories of zoned
property could not be used.
32 No. 07-3949
to reverse the burden of finding alternate sites onto the
Zoning Board and its officers, a burden the Ordinance
places squarely on the applicant for a conditional use
permit. Bell also argues that the district court and the
Zoning Board ignored the numerous propagation maps
and RF data provided by Bell, contending that these
documents identified the area in which the tower must
be placed to provide adequate coverage. According to
Bell, the Board’s experts knew from those maps and
documents which locations should be investigated, and
neither the Board nor the court had the expertise
required to evaluate the maps and data. At the Zoning
Board meeting, a Bell representative addressing this
question offered the following testimony to support the
company’s compliance with Section 1514:
The other area with which to review a wireless com-
munications tower request is your checklist of certain
zoning classifications. Rather than going through
that long process of explaining all that, I will simply
refer to Tab 13 that we submitted, and also reiterate
the fact that Cincinnati Bell Wireless would not be
here unless there was a definite need for this facility
to be located here. We take every angle and every
avenue to co-locate on existing structures of height
whether it be water tower, existing cell tower,
rooftops, whatever. If we can utilize and enhance our
network by not having to go through a long zoning
process, we’re going to go through that process be-
cause it’s all about servicing the customer, because it
is a customer-based business. So, I would just refer to
chapter—Section 13 that we submitted in writing
No. 07-3949 33
and ask that you list that as the findings established
with Article 15, Section 1514.
R. 23, Ex. 29, at 1721, Tr. at 58. Tab 13 is simply the docu-
ment containing the conclusory statements that no
land zoned in the preferred categories would accom-
modate the engineering needs of the proposed tower. In
that document and in other documents, Bell made a good
case for ruling out co-location on existing towers or
structures, but Bell has yet to point to anything specific
showing the company even considered much less ruled
out land in the other categories. Without pointing to
zoning maps or an overlay of zoning maps and propaga-
tion maps, for example, the company essentially argues,
“Trust us; we looked.” Bell’s argument amounts to a
claim that the Board and the district court were required
to rubber-stamp the experts’ conclusory statements that
no land zoned in the other six categories would have
satisfied the technical specifications. Neither the Board
nor the court were required to accept unsupported opin-
ions. Given that the only “evidence” that Bell satisfied
Section 1514 consists of Bell’s conclusory statements, we
conclude that the Board’s decision rejecting the permit
for noncompliance with Section 1514 is supported by
substantial evidence.
C.
Bell contends that the Board’s rejection of its applica-
tion effectively prohibits Bell from providing wireless
communications services. Bell also argues that the
Board’s denial unreasonably discriminates between wire-
34 No. 07-3949
less providers. Neither of these arguments has merit. Our
review of the prohibition-of-service claim is de novo.
VoiceStream, 342 F.3d at 833 (whether a particular zoning
decision violates the Act’s anti-prohibition clause is a
question that a district court determines without
deference to the local zoning board, and an appellate
court’s review of a grant of summary judgment on this
issue is de novo). We considered the meaning of the anti-
prohibition clause in VoiceStream and concluded that “so
long as the service provider has not investigated thor-
oughly the possibility of other viable alternatives, the
denial of an individual permit does not ‘prohibit or
have the effect of prohibiting the provision of personal
wireless services.’ 47 U.S.C. § 332(c)(7)(B)(i)(II).” Voice-
Stream, 342 F.3d at 834-35. In VoiceStream, we joined the
First Circuit in holding that a provider carries a heavy
burden of demonstrating not just that the application
has been rejected but that further reasonable efforts are
so likely to be fruitless that it is a waste of time even to
try. VoiceStream, 342 F.3d at 834 (citing Second Generation
Props., L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir.
2002)). “Under this standard, the provider must show
that its ‘existing application is the only feasible plan’
and that ‘there are no other potential solutions to the
purported problem.’ ” VoiceStream, 342 F.3d at 834 (citing
Town of Pelham, 313 F.3d at 630, 635). As we noted above,
Bell did not demonstrate to the Board’s satisfaction that
it had investigated not only co-location but also six
other categories of zoned land before applying to place
the tower on the Helchers’ agricultural property. That
failure to satisfy Section 1514 of the Ordinance demon-
No. 07-3949 35
strated that the applicants did not meet the standard set
under VoiceStream for a prohibition-of-service claim.
Finally, Bell has failed to demonstrate that the Board
unreasonably discriminated among providers by denying
the permit. The Act provides:
The regulation of the placement, construction, and
modification of personal wireless service facilities
by any State or local government or instrumentality
thereof . . . shall not unreasonably discriminate
among providers of functionally equivalent services[.]
47 U.S.C. § 332(c)(7)(B). We have yet to address what is
needed to make out a claim under this provision of the
Act. Bell contends that the Board’s denial of its permit
application left Bell unable to provide viable competition
to other carriers in Dearborn County. But Bell has not
alleged, much less presented evidence, that the Zoning
Board treated any other carrier more favorably. There is
no allegation, for example, that other carriers were
allowed to construct towers on land zoned agricultural.
The only evidence in the record regarding the Board’s
treatment of other carriers is the undisputed statement
from the Board’s expert, Ebelhar, that every other carrier
that applied for a permit to build a new wireless tower
in Dearborn County since the Ordinance went into effect
had been required to co-locate on an already existing
tower. R. 23, Ex. 29, at 1718, Tr. at 46. It is difficult to
see how Bell can make a claim that these other carriers
were treated more favorably when none had been
allowed to build a new tower since the inception of the
Ordinance.
36 No. 07-3949
Courts interpreting this provision require the plaintiff
to demonstrate that the carriers are functionally equiva-
lent, that the local government treated another carrier
more favorably, and also that the favorable treatment
was unreasonable. See Ogden Fire Co. No. 1 v. Upper
Chichester Twp., 504 F.3d 370, 392 (3d Cir. 2007) (re-
quiring complaining wireless carriers to demonstrate that
another carrier provides functionally equivalent services,
and that the other carrier is similarly situated, i.e., that
the structure, placement or cumulative impact of the
existing facilities makes them as or more intrusive than
the proposed facility); Sprint Spectrum L.P. v. Willoth, 176
F.3d 630, 638-39 (2d Cir. 1999) (holding that the Act
contemplates that some discrimination between providers
is allowed so long as it is reasonable); Virginia Beach,
155 F.3d at 426-28 (finding that the Act contemplates
some discrimination among providers but prohibits only
unreasonable discrimination). Discrimination based on
aesthetics and compatibility with the character of the area
has been held reasonable. Willoth, 176 F.3d at 639; Virginia
Beach, 155 F.3d at 427. Bell has not identified any other
carrier to use as a comparator much less a functionally
equivalent one. Nor has Bell demonstrated that it was
treated less favorably nor that any differing treatment
was unreasonable. Under any formulation of the statute,
Bell’s claim of unreasonable discrimination fails. The
district court correctly entered judgment in favor of the
Zoning Board and its members on this claim.
A FFIRMED.
2-9-10