* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### May 11, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

U.S. CELLULAR CORPORATION,

Plaintiff, BILL JOHNSON,

Plaintiff-IntervenorAppellant,

v. BOARD OF ADJUSTMENT OF THE CITY OF SEMINOLE, OKLAHOMA,

Defendant-Appellee. No. 02-7124 (D.C. No. 02-CV-185-P) (E.D. Okla.)

ORDER AND JUDGMENT *

Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.1 47 U.S.C. § 332(c)(7) provides in relevant part:

(A) General authority Except as provided in this paragraph, nothing in th is chapter shall limit or affect the authority of a State or local governmentor instrumentality thereof over decisions regarding the placement, constructio n, 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 g overnment or instrumentality thereof-- (I) shall not unreasonably discriminate among provider s of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiti ng the provision of personal wireless services. (ii) A State or local government or instrumentality the reof shall act on any request for authorization to place, construct, or m odify personal wireless service facilities within a reasonable period of ti me after the request is duly filed with such government or instrumentality, taki ng into account the nature and scope of such request. (iii) Any decision by a State or local government or ins trumentality thereof to deny a request to place, construct, or modify perso nal wireless service facilities shall be in writing and supported by sub stantial evidence contained in a written record. (continued...) -2- Plaintiff-intervenor Bill Johnson appeals from an o rder denying his request for a mandatory injunction under the Telecommunicat ions Act of 1996 (TCA), 47 U.S.C. § 332(c)(7)(B). 1 Specifically, Mr. Johnson claims the Board of1 (...continued)

(iv) No State or local government or instrumentality th ereof may regulate the placement, construction, and modification of person al wireless service facilities on the basis of the environmental effect s of radio frequency emissions to the extent that such facilities complywith the Commission’s regulations concerning such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality th ereof that is inconsistent with this subparagraph may, within 30 days after su ch action or failure to act, commence an action in any court of competent jurisd iction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with c lause (iv) may petition the Commission for relief.

2 USCC obtained an option to lease part of Mr. Johnso n’s property where it proposed to erect its cellular tower. For that rea son it prepared an application for a setback variance listing it and Mr. Johnson as jo int applicants. USCC decided not to exercise its option and withdrew from the pr ocess. Mr. Johnson also requested a writ of mandamus and a declaratory judg ment from the district court. Those requests are not relevant to the issues raise d in this appeal, and we therefore do not need to address them. -3- Adjustment of the City of Seminole, Oklahoma (the B oard) violated the TCA when it denied a request for a zoning variance to c onstruct and locate a cellular transmission tower on his property. 2As initially proposed, the tower was to be used by U.S. Cellular Corporation (USCC) to provide wireless communication services, see Aplt. App. at 9, and “[a]t the top of the [tower] there [was going to] be a triangular platform” on which would be placed several antennas, id. Mr. Johnson and USCC jointly requested the variance bec ause the proposed location3 The city’s zoning ordinance “requires a setback of 120% of the tower

height from all property lines. Further, said Sect ion requires all towers to be setback their height distance from any structure th at is being occupied.” Aplt. App. at 227. -4- for the tower did not meet the City’s setback requi rements. 3 After the Board denied the variance request for Mr. Johnson’s property, USCC entered into a lease agreement with the City of Seminole, see Ex. B to USCC’s Motion to Dismiss Appeal, and USCC subsequently placed its antennas on a water tower owned by the City, id. , Ex. A at 2-3. Thus, while USCC was initially a plaintiff in the district court action, it is not a party to this appeal. USCC has also specifically informed this court that“it will not take any further action to gain the permits and approvals necessary to place a tower on [Mr. Johnson’s] property.” Id. at 3. Nonetheless, Mr. Johnson is still seeking a variance for the proposed tower, and he has suffere d an injury for purposes of establishing Article III standing, and his applicat ion for a variance is not moot. As set forth herein, we conclude that the Board didnot violate the TCA’s procedural requirements when it denied Mr. Johnson’ s request for a variance from the City’s setback requirements. We therefore affirm the district court’s denial of injunctive relief under the TCA.
A. Telecommunications Act of 1996. According to the TCA, “[a]ny decision of a State orlocal government . . .-5-

to deny a request to . . . construct . . . personal wireless facilities shall be in writing and supported by substantial evidence conta ined in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). With regard to the “in writing” requirement, we agree with the following reasoning of the Sixth Cir cuit: We hold that for a decision by a State or local gov ernment . . . denying a request to place, construct, or modify pe rsonal wireless service facilities to be “in writing” for the purpo ses of . . . § 332(c)(7)(B)(iii), it must (1) be separate from the written record; (2) describe the reasons for the denial; and (3) co ntain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that support s those reasons. New Par v. City of Saginaw , 301 F.3d 390, 395-96 (6th Cir. 2002); see also United States Cellular Telephone of Greater Tulsa, L.L.C. v. City of Broken Arrow, Oklahoma , 340 F.3d 1122, 1135 (10th Cir. 2003) (noting thatthe purpose of the TCA’s “‘writing’ requirement is to facilitat e meaningful judicial review”). Consequently, “we do not require formal findings of fact or conclusions of law . . . . Nor need a board’s written decision state every fact in the record that supports its decision.” National Tower, LLC v. Plainville Zoning Bd. of Appeals , 297 F.3d 14, 20-21 (1st Cir. 2002). With regard to the “substantial evidence” requireme nt, we also agree with the Sixth Circuit that “the ‘substantial evidence’ standard of section 332 is the traditional standard employed by the courts for review of agency action.” New
Par , 301 F.3d at 396 (quotation omitted); accord Cellular Tel. Co. v. Town of-6-

Oyster Bay , 166 F.3d 490, 494 (2d Cir. 1999); National Tower, LLC , 297 F.3d at 21. Thus, “[s]ubstantial evidence, in [this] conte xt, has been construed to mean less than a preponderance, but more than a scintill a of evidence. It means such relevant evidence as a reasonable mind might acceptas adequate to support a conclusion.” Town of Oyster Bay , 166 F.3d at 494. As we have recognized, however, the TCA’s requirement that local zoning de cisions be supported by substantial evidence “does not affect or encroach upon the substantive standards to be applied under established principles of state and local law.” City of Broken Arrow, 340 F.3d at 1133 (quotation omitted). As a result, when considering a request to construct a wireless service facility, l ocal zoning authorities may consider factors such as aesthetics and public safe ty. Their discretion is not unfettered, however, and “[m]ere generalized concerns . . . are insufficient to create substantial evidence . . . .” Preferred Sites, LLC v. Troup County , 296 F.3d 1210, 1219 (11th Cir. 2002); see also Southwestern Bell Mobile Sys., Inc. v. Todd , 244 F.3d 51, 57 (1st Cir. 2001) (“[T]he TCA . . . p rovides protections from irrational or substanceless decisions by local auth orities.”). Following the lead of the First Circuit, “[w]e [als o] make explicit another aspect of judicial review of local [zoning] decisio ns [under the TCA],” and that is that “[a] board may not provide the applicant with one reason for a denial and then, in court, seek to uphold its decision on different grounds.” National Tower,-7-

LLC , 297 F.3d at 21; accord Preferred Sites, LLC , 296 F.3d at 1220 n.9 (stating that a zoning board “may not rely on rationalizatio ns constructed after the fact to support the denial of [an] application”) . In other words, “[p]ost-hoc rationales cannot serve as substantial evidence.” USOC of Greater Iowa, Inc. v. City of Bellevue, Nebraska , 279 F. Supp. 2d 1080, 1087 (D. Neb. 2003). Finally, as a means to enforce the written decisionand substantial evidence requirements, the TCA provides a private cause of a ction for “[a]ny person adversely affected by any final action . . . by a S tate or local government . . . that is inconsistent with [§ 332(c)(7)(B)(iii)].” 47 U. S.C. § 332(c)(7)(B)(v). Although the TCA does not provide a statutory remedy for a violation of its provisions, it is well established that “injunctive relief is an appropriate remedy for violations of [the TCA’s procedural requirement s].” New Par , 301 F.3d at 399. The decision of whether to grant equitable relie f under the TCA is a matter left to the discretion of the district court

. See Preferred Sites, LLC , 296 F.3d at 1220-22. B. Proceedings Before the Board and the District C ourt. While Mr. Johnson and USCC were nominally joint app licants for the variance, USCC presented the case before the Board, which met to vote on the requested zoning variance on March 14, 2002. At th at time, USCC had revised its plans regarding the proposed tower, and, instead of a 140 foot monopole tower, it-8-

was requesting a variance to construct a shorter 12 0 foot sectional tower. As reflected in the minutes of the Board’s meeting on March 14, 2002, however, the Board addressed both the newly-proposed 120 foot se ctional tower and the original 140 foot monopole tower, and the board den ied the requested variances as to both towers. See Aplt. App. at 23-24. The minutes of the Board’s March 14, 2002 meeting w ere authored by Buster Wilcox, the City of Seminole’s Director of C ommunity Services, and the minutes give the following explanation for why the variances were denied:

Request from property owner for a variance of 30’ o n east property line and 20’ on west property line as requ ired by City Ordinance #877 . . . . A shorter (120’) sectional tower still does not meet setbacks as required by ordinance. The sectio nal tower could fall to the center of Eureka Street and across the alley to the west. Also, the tower could fall over 50’ of Bill’s Garag e. The locations are just not big enough to construct a 120’ section al tower, nor a 140’ monopole tower. . . . Variance denied. Property owner requested a vote on the 140’ monopol e tower since it was continued instead of withdrawn. . . . Variance denied. Id. The Board did not issue a separate written decisiondenying the variances. In addition, although a formal “Board of Adjustment Re cord” was subsequently compiled by counsel for the Board in June 2002, id. at 3, it does not appear that a formal written record had been compiled prior to that time. On April 8, 2002, USCC filed its complaint in the d istrict court, claiming that the “Board violated the requirement of the Tel ecommunications Act that there4 In its complaint, in addition to the claim under th e Telecommunications

Act, USCC also asserted the following claims agains t the Board: (1) federal and state due process and equal protection claims; and (2) a state-law claim for violating the City of Seminole’s zoning regulations . In this appeal, Mr. Johnson (continued...) -9- be a written denial supported by substantial eviden ce contained in the written record.” R., Doc. 1 at 3. USCC’s complaint addres sed only the proposed 140 foot monopole tower, and it did not mention the pro posed 120 foot sectional tower. In order to remedy the alleged violation of the TCA, USCC requested “a mandatory injunction . . . directing [the] Board to approve USCC’s application for a . . . variance to locate a 140 foot monopole cell ular transmission tower . . . on [Johnson’s] Property in accordance with the site plan submitted by USCC.” Id. at 4. On May 16, 2002, Mr. Johnson filed a motion to inte rvene as an additional party plaintiff in the district court action, claim ing that USCC was no longer protecting his interests since it had recently nego tiated the water tower lease with the City of Seminole. Like USCC’s complaint, Mr. J ohnson’s motion to intervene addressed only the proposed 140 foot monopole tower . In addition, Mr. Johnson informed the district court that “the causes of act ion asserted by Intervenor[] are identical to the causes of action asserted by USCC in [its] complaint against the City.” R., Doc. 5 at 4. On June 4, 2002, the dist rict court granted Mr. Johnson’s motion to intervene. 44 (...continued)

has abandoned these other claims. As a result, thi s appeal involves only Mr. Johnson’s claim under the Telecommunications Act. -10- Subsequently, on August 2, 2002, the district courtentered a minute order stating the following: The Court finds that the Board violated the Telecom munications Act of 1996, by failing to set forth written findings o f fact, based on substantial evidence contained in a written record, supporting its decision. The Board shall have twenty (20) days, or until Aug ust 22, 2002, to provide such a written decision . . . . after whic h the Court will perform an expedited review, as contemplated by the Act, of the merits. R., Doc. 31. In response to this order, the Board prepared a formal written decision, and the decision was submitted to the dis trict court on August 22, 2002. In its written decision, the Board denied the reque sted variance for the proposed tower based on its finding that “the variance cannot be granted without undermining the public safety . . . .” Aplt. App. at 230. With regard to the issue of public safety, the Board elaborated on its reaso ning as follows:

The Board of Adjustment further finds that the subj ect tract of land is far too small to construct a tower 140’ in height. . . . Even using the entire Johnson tract as the subject tract , [USCC] would require a variance of 118’, which is equivalent to 85% of the tower’s height. Applicant presented evidence regarding the stability and strength of the proposed monopole tower and the unl ikelihood of it falling. The Board is not overly impressed with th is evidence. [USCC] presented letters written by a contract admi nistrator of the tower manufacturer and presented photographs of tow ers that had-11-

been constructed in other cities without setback re strictions. The Board remains unconvinced that the failure of the t ower is an impossible occurrence. However, we find in the inf ormation provided that the setback area, or what might bette r be referred to as a “safety area,” is not so much to protect the publ ic from towers failing, but to protect the public from ice which m ay form on and fall from the tower. This concern was raised several ti mes during the discussions over this Application, but no solution was ever reached or suggested. It still appears that a setback or s afe zone may be the best means to protect the public when a site abuts a residentially zoned property or when the site abuts a street or a lleyway. . . . The[] facts suggest that members of the public would be i n close proximity to the tower on a regular basis. Even if the toweris impervious to collapse, a fact the Board is unwilling to concede, the concern over ice falling off the tower remains a significant, ye t unanswered concern. We do not, therefore, consider the varian ce to be in the best interest of the public.

. . . . . . . In this case it is the issue of public safety . . . that most concerns the Board. While [USCC] has addressed the issue of the tower falling to some degree, it has failed to adeq uately satisfy the Board. It has failed to address the Board’s concern over ice forming on the tower and then falling on pedestrians, build ings, and passing vehicles at all. Id. at 230-32. On September 18, 2002, the district court entered an order denying Mr. Johnson’s request for injunctive relief under the T CA, finding that “[b]ased on the written findings submitted by the Board, . . . the Board has supported its decision by substantial evidence in compliance withthe Act.” R., Doc. 39 at 4.

C. Analysis.-12-

1. Standing and Mootness. Despite the fact that USCC no longer has any plans to build a tower on Mr. Johnson’s property, Mr. Johnson has suffered an inj ury for purposes of establishing Article III standing, and his applicat ion for a variance is not moot. To begin with, after the Board denied the requestedvariance, USCC decided not to exercise its option to lease a portion of Mr. Jo hnson’s property for construction of the proposed tower. See USCC’s Motion to Dismiss Appeal, Ex. A at 2-3. Even though USCC only had an option to lease Mr. Jo hnson’s property for the installation of its antennas, Mr. Johnson therefore lost a potential future income stream, and there is no question that his loss is traceable to the actions of the Board. Mr. Johnson, who was a co-applicant for the varianc e, has suffered a continuing injury that this court could presently r edress by granting the requested injunctive relief under the TCA. Most importantly, although the potential worth of the variance is obviously much more speculative now that USCC is out of the picture, the variance is still an asset with potent ial future value, and the Board has failed to demonstrate either: (1) that USCC’s withd rawal from the project raises a legal impediment to the Board now granting the vari ance to Mr. Johnson as the sole applicant; or (2) that there are any provision s of local or state law which would prevent Mr. Johnson from constructing a toweron his property if the-13-

variance was granted. Consequently, despite the ch anged circumstances pertaining to USCC, this appeal still presents a li ve case or controversy for purposes of Article III.
2. Merits. We conclude that there is substantial evidence in t he record to support the Board’s denial of the requested variance from the C ity’s setback requirements, and we reject Mr. Johnson’s claim that the Board ap plied an ad hocrationale to deny the variance. Applying our own Tenth Circuit precedent, we emphasize that the burden fell squarely on USCC and Mr. Johnson wi th respect to meeting certain ordinance requirements, including showing w hy co-location was not an option or establishing an undue hardship existed wi th respect to the specific site selected. We also reject any inference that the Bo ard was responsible for providing expert evidence to support its denial. To begin, the variance application and its attached documents indicated the tower would be placed on a 50-foot by 50-foot site owned by Mr. Johnson, but they did not explain why co-location through use of existing towers would not meet service needs, even though the ordinance at is sue specifically states “[t]he application should look at co-location on an existi ng tower, and if not feasible, indicate why it is not feasible.” Aplt. App. at 17 9(n); id. at 4, 8, 11, 177. These documents also did not disclose why denial of a var iance for the Johnson site-14-

would create an unnecessary hardship, as required b y the local zoning code, which states variances are granted in individual cases on ly where “unnecessary hardship” will result, and “[r]elief, if granted, w ould not cause substantial detriment to the public good or impair the purposes and intent of the zoning regulations.” Id. at 181-83 and § 12-125 (¶¶ A-D, F). It is clear the Board and its staff considered thes e and several other factors in advance of denying the variance. Early in the application process, on November 26, 2001, an attorney for USCC sent the Se minole City Planner and Director of Community Services, Buster Wilcox, a le tter on placement of the monopole tower on the Johnson site. Id. at 156-57. He generally stated: 1) a tower was necessary on the Johnson site because the site was .5 miles northwest of the search ring identified by USCC engineers andbelow the needed elevation; 2) the city water tower did not meet the wind speedand ice specifications defined in the ordinance; and 3) the possibility of co-location on an existing cellular tower would not meet its need for providing coverage of a ll the highways in and around Seminole. Id. He did not explain or discuss in detail why these or other colocation towers or alternative property sites were not feasible to service those areas, but attached an affidavit of an Associate Ra dio Frequency Engineer which simply stated, “the proposed tower is necessary to provide cellular service in an area where there is inadequate service.” Id. at 159. Later, in a December 10,-15-

2001 letter, a representative of USCC sent the Citya letter explaining why the selected location met the topographical and geograp hical factors needed, but it again failed to discuss why co-location or alternat ive locations were not available. Id. at 151-55. Finally, on January 29, 2002, the manu facturer of the proposed monopole tower sent a letter generally stating it d id not expect the monopole to fail, it had no record of failure or collapse, thatcatastrophic wind conditions such as those experienced in a tornado may result in dam age or distortion of the monopole tower, and that in the unlikely event of f ailure it would mostly likely bend or buckle, collapsing at the section points. Id. at 74. Armed with this information, staff recommended agai nst a variance at the Board meeting on January 31, 2002, giving as reason s: 1) the purpose of setback is for safety reasons; 2) the 140-foot tower would be within 40 to 50 feet of the west property line, so if it fell over, 100 feet of it could fall on other structures or citizens; and 3) the manufacturer gave unconvincing assurances the tower would not fall over. Id. at 19-20. Staff also suggested other alternative locations existed, which USCC “found not satisfactory for loc ation of a tower by [USCC] engineers.” Id. at 20. Ultimately, the Board agreed to table a vo te for further consideration, noting the City of Seminole is pro b usiness and volunteering to compare its setback ordinance with other cities and “ get another engineering opinion to determine if our ordinance is excessive. ” Id.-16-

On February 14, 2002, prior to the next Board meeti ng on the matter, Director Buster Wilcox sent a letter to the Board and USCC in a clear attempt to address: 1) the safety and other concerns raised bythe variance request; 2) USCC’s claim unsatisfactory alternatives existed ; and 3) the Board’s decision to compare its setback ordinance with other cities and get an opinion on whether its setback requirement was excessive. Id. at 25-27. The letter began with Director Wilcox identifying the five conditions req uired to be satisfied by local governments under the Telecommunications Act in dec isions concerning the siting of towers and how the City satisfied, or int ended to satisfy, those five conditions or requirements. Id. at 25-26. With respect to the Act’s requirement that denials must be “in writing and supported by s ubstantial evidence contained in a written record,” the letter stated it intended to meet such requirement in the event of denial by providing USCC with: 1) a copy o f the minutes of the Board meeting of such denial; and 2) a copy of “this reco mmendation.” Id. at 26. Neither USCC nor Mr. Johnson objected to this means of meeting the “in writing” requirement for its denial. Next, Director Wilcox’s February 14, 2002 letter re commended denial of the variance. This letter sets forth many of the r easons for denial of the requested variance that were considered by the Board before i ts final vote. Director Wilcox listed the following reasons for denying a variance , id. at 26-27:5 As discussed later, the OML information and sample ordinance referred to

in and attached to the letter recommended, for safe ty reasons, “fall zones range from a set back distance equal to 110% of the height of the tower to 50% of the height,” or equal to its height if, like here, it a butted a residentially zoned property or a street, and it identified as a safetyissue the risk of falling debris from towers, including ice. Aplt. App. at 46, 67. -17- 1) the variance would discriminate against another cellular company which wanted to put a monopole tower in town and, when in formed of the setback requirements, placed its tower on land complying wi th such requirements; 2) the setback of 110% of the height of the tower w as reasonable when compared with the attached Oklahoma Municipal Leagu e (OML) recommendation of the same 110% height setback requirement, and th e City of Tulsa’s existing ordinance which also set out a 110% height setback requirement; 3) when asked to comment on the setback ordinance, Doug McCleary of Myers Engineering “stated basically the same info w e received from OML 5 and another statement that ‘anything can fall’”; 4) a tower could cause the City of Seminole to lose needed housing units given the north side of the property was zoned for two-family dwellings and at one time a developer was going to build duplexes ona vacant lot in that area; 5) the engineer’s plans were not fully stamped; 6) the manufacturer’s letter contained statements t oo vague and non-committal, including, for example, that “wind c onditions . . . experienced in a-18-

tornado . . . may result in damage,” which arguably is a legitimate concern in Oklahoma. The letter also mentioned it was unlikel y a vehicle would hit a two-story structure, “but one did,” and that the strongest statement of no record of failure or collapse of a monopole tower was also va gue because of the relatively short life of most cell towers; 7) many cities have declared a moratorium on construction of such towers “until the problems are resolved,” but instead of amoratorium and because Seminole is pro business, he would simply encourage following the ordinance; 8) Seminole encourages co-location of antennas on e xisting structures, and alternatives were available, including placement on water towers, other buildings, telephone poles, and existing radio antennas, and the Director had “heard nothing about U.S. Cellular collocating on the Cellular One tower”; 9) to meet the City’s ordinance for a 140-foot mono pole, the tower would need a little over two acres of land, and several a lternative locations existed “around town” where a variance would not be needed to meet the setback requirements for such a structure; and 10) if allowed, “we can expect other cell companies to place more towers in areas where setback requirements cannot be met. Th is would set a precedence whereby we could not discriminate against others. We would be inundated with unsightly towers.”-19-

Director Wilcox’s letter also referred to attached OML information entitled “Local Officials Guide -- Siting Cellular Towers,” and Director Wilcox informed the reader it “contains much more information.” Id. at 26. In that document, in a bolded “Safety” section, it explains setbacks “establish safe zones for falling tower debris or collapse.” Id. at 46. Other information contained with the OML sample ordinance states a setback “is intended to p rovide a safety area in case [of] tower failure or, more likely to occur, the area in which ice will fall from the
tower.” Id. at 67. It also explains “[a] setback of at least the height of the proposed tower is required when the site abuts a re sidentially zoned property or when the site abuts a street.” Id. Clearly, the reasons for Director Wilcox’s recommended denial, which the Board most certainly considered, do not appear to be based solely on collapse of the tower, and his l etter did not recommend a blanket prohibition on towers within the City, but indicated co-location opportunities or alternative locations existed whic h would not require a variance. The record does not contain a response from USCC to Director Wilcox’s letter, but apparently some communication occurred to which Director Wilcox responded. On February 27, 2002, the Director sentanother letter to USCC asking for clarification. Id. at 73. First, he noted the reason USCC gave for i ts inability to co-locate with the other communication s company tower was that it was not within the engineering search ring, but Dir ector Wilcox noted several-20-

public land sites within the engineering search rin g had elevations in excess of 900 feet above sea level and would not require a variance. Id. Director Wilcox also explained USCC had provided no documentation t o support its claim it could not use existing water towers because they did not meet OSHA requirements or wind speed and ice specification requirements. Id. He also pointed out the City of Seminole was concerned the proposed tower would detract from the City’s aesthetics. Id. Finally, he stated variances should only be grant ed when absolutely necessary and safe, and that a shorter t ower could still fall to the center line of Eureka Street and kill or injure citizens a nd create liability for the City. Id. Nothing in the record shows USCC or Mr. Johnson s pecifically addressed or responded to Director Wilcox’s questions or clarifi cation requests. At the next Board meeting, on February 19, 2002, th e city attorney advised the ordinance was legal and had “no problem with ex isting ordinance[s].” Id. at 21. At that time, “US Cellular representatives the n decided to change to a sectional tower,” at which point discussion on the tower was continued. Id. However, USCC and Mr. Johnson never filed a new app lication or amended the monopole tower application to change their request to a variance for a sectional tower. Aplee. Br. at 6. On March 4, 2002, the man ufacturer sent a letter to USCC concerning the sectional tower, stating “[w]he n steel becomes overstressed it does not suddenly break; it will bend and buckle . Therefore, in the unlikely-21-

event of failure, the tower would collapse within 5 0% of the overall tower height .” Aplt. App. at 75 (emphasis added.) On March 14, 2002, the Board met and denied a variance for the newly proposed 120-foot sectional tower on grounds it sti ll did not meet setbacks required by the ordinance and “could fall to the ce nter of Eureka Street and across the alley to the west. Also, the tower could fall over 50’ of Bill’s Garage.” Id. at 23. In other words, when contemplating the possibi lity of a 50% collapse as indicated by the manufacturer, a 120-foot tower wou ld bend over Bill’s Garage, an occupied building. The Board minutes further st ated, “[t]he locations are just not big enough to construct a 120’ sectional tower, nor a 140’ monopole tower.” Id. at 23-24. The Board then denied a variance for th e 120-foot sectional tower, after which it separately voted to deny a variance for a 140-foot monopole tower. Id. at 24. While the Board meeting minutes and Mr. Wilcox’s le tters and attachments were not initially condensed into a more formal den ial document, they adequately describe the reasons for denial sufficient for a co urt to evaluate whether substantial evidence in the record supported such d enial. To insist on a more detailed description of the reasons for denial woul d place an undue burden on lay zoning boards. As explained by another court consi dering denial of a variance for a communications tower, “[l]ocal zoning boards are lay citizen boards, and while-22-

their decisions must be in writing, the boards neednot make extensive factual findings in support of their ultimate decision.” Second Generation Props., L.P. v. Town of Pelham , 313 F.3d 620, 629 (1st Cir. 2002). Stated anothe r way, “council members . . . are not technocrats, and sub stantial evidence review does not require that the arguments and determinations b e stated with exacting precision so long as the ultimate conclusion is und ergirded by reasonable evidence.” United States Cellular Corp. v. City of Wichita Fal ls, Tex. , 364 F.3d 250, 259 (5th Cir. 2004). Nonetheless, following the district court’s directi ons on remand, the Board issued a more formal written denial incorporating the facts, reasons and conclusions in support of its denial of the request ed variance, which included reasons previously considered: 1) In the highly unlikely event of failure, the man ufacturer expected the tower to collapse at the section points and within 50% of the overall tower height. Aplt. App. at 228. 2) Variance requests were 118 feet on the west prop erty line, 76 feet on the east property line, and 49 feet on the south property line, as well as 110 feet from Bill’s Garage and 20 feet from Movie Stars Video Re ntal. Id. The north portion beyond the property line was zoned R2 for two-famil y dwellings, and “[t]he proposed tower would be located 19.4’ from the North property line . . . [and] 25’-23-

from the East and West property lines.” Id. 3) Pursuant to the local zoning code, variances are granted in individual cases of “unnecessary hardship,” and USCC and Mr. J ohnson provided no evidence a) of extraordinary or exceptional conditi ons related to the property’s size, shape or topography; b) of creation of an unn ecessary hardship as a result of any particular or exceptional situation or conditio n of the property; or c) that the variance could be granted without undermining the p ublic safety and welfare. Id.
at 228-32. 4) A 140-foot tower would require a setback of 168 feet on each side of the property, which is impossible on a tract of 50 feetby 50 feet, and the manufacturer’s unimpressive evidence regarding the stability and strength of the proposed tower left the Board “unconvinced that the failure of the tower is an impossible occurrence.” Id. at 230. The Board also found the safety area was “not so much to protect the public from towers fail ing, but to protect the public from ice which may form on and fall from the tower” and that “[t]his concern was raised several times during the discussions over th is Application, but no solution was ever reached or suggested.” Id. It also determined the setback or safe zone may be the best means to protect the public when a site abuts a residentiallyzoned property or a street or alleyway. Id. at 230-31. It noted the tower would be just 30 feet from Bill’s Garage and 90 feet from th e center of Eureka Street,-24-

meaning the public would be in close proximity to the tower on a regular basis. Id. at 231. Because many of the reasons listed in the formal wr itten denial document are identical or similar to those outlined in the B oard’s meeting minutes and Director Wilcox’s February 14, 2002 letter and atta chments, they do not establish an improper attempt by the Board to justify its dec ision on grounds different than those previously considered or otherwise equate to an impermissible ad hoc rationale. As to the ice issue, the referenced OML information recommended setbacks to address falling debris as well as ice and was sent to both the Board and USCC. The fact ice was not mentioned in the Bo ard meeting minutes does not mean it was not of concern early on or not a re ason, in part, for any Board member’s denial. Furthermore, with respect to the tower collapse issue, in this case, the Board was not prohibiting any tower in th e City, but merely disallowing placement of a tower in one specific location, base d in part on a reasonable concern that if one-half of the tower collapsed due to a tornado or other reason, it might collapse on a regularly traversed street or an occupied building or near a residentially-zoned area. In addition, the record patently supports the determination USCC and Mr. Johnson provided no evid ence of an unnecessary hardship with regard to the site location or, in other words, they provided no evidence showing why co-location on other existing towers or alternative sites-25-

would not suffice. The issue of ad hoc rationalization and other issues presented in this appeal are addressed in our decision in United States Cellular Telephone of Greater Tulsa, L.L.C. v. City of Broken Arrow, Oklahoma , 340 F.3d 1122 (10th Cir. 2003). While the record in that case was more comprehensiv e, its holdings suggest the Board did not: 1) impermissibly consider ad hoc factors; 2) have the burden with respect to issues of co-location, alternative locat ions, or undue hardship; 3) need to obtain expert evidence to support its denial of the variance; or 4) fail to rely on sufficient reasons for denial to meet the substanti al evidence requirement. Id. at 1133-38. To begin, in the Broken Arrow case, U.S. Cellular filed applications to construct cellular transmission towers, which went through the planning commission and then to the city council prior to de nial. Id. at 1124-25. Regarding the first 120-foot monopole application, the city planning director, in his written recommendation in an agenda packet, det ermined in part, like here, that the tower location did not meet the minimum se tback requirement (120% of the tower’s height) and noted an alternative locati on existed for its placement. Id. at 1126. At the planning commission meeting, U.S. Cellular claimed alternative sites did not provide sufficient coverage, but, lik e here, did not provide evidence to substantiate its claim. Id. at 1127-28. The planning commission voted to deny-26-

the request and forwarded a report to the mayor andcity council nearly identical to the director’s agenda packet recommendation. Id. at 1128 & n.11. At the city council hearing, members expressed concern regardin g the monopole, adopted the planning commission’s recommendation and then sent a letter to U.S. Cellular setting forth grounds for denial. Id. at 1128-29. This written decision, sent following the city council hearing, was intended to meet the provision in the local ordinance that denial of an application “shall be c onveyed to the applicant in writing, together with the summary of the evidence which supports a denial of the application.” Id. at 1124. In a similar procedural situation, the planning com mission recommended denial of another application by U.S. Cellular for a 240-foot tower. Id. at 1129-30. The director’s agenda packet listed, in p art, two reasons for denial, including the fact, like here, alternative sites ex isted close to the same location and it was undesirable to locate a 240-foot tower a djacent to single-family homes. Id. at 1129. In a recommendation almost identical to the director’s agenda packet recommendation, the planning commission recommendeddenial to the mayor and city council, after which they denied the applicati on and then sent a letter to U.S. Cellular listing the reasons for denial, including reasons addressed in the director’s agenda packet. Id. at 1130-32 & n.18. Our court found no ad hocreasons for denial. Id. at 1134-35. In so doing,-27-

we rejected U.S. Cellular’s assertion the only reas ons which could be considered were those discussed at the time of the city counci l’s voice votes and not in its later written decisions. Id. at 1133-34. In so holding, we determined the written decisions were notpost hoc determinations because: 1) the reasons set forth in the written decisions c ontained many of the same reasons in the agenda packet which the planning dir ector created at the beginning of the application process and the planning commiss ion considered before sending the city council its recommendation containing the same information in the agenda packet information. Id. at 1134-35; 2) the ordinance allowed a written decision after the vote to meet the self-imposed “in writing” requirement. Id. at 1135; and 3) it would be unfair to assume each city council m ember who voted to deny the application adopted only those reasons dis cussed at the hearing and, in any event, the written denials which set forth in w riting the city’s reasons for denial removed the need for such speculation. Id. Arguably, similar circumstances exist in this case, so the reasons relied on by the Board are not impermissibly ad hocin nature. We have a prior staff recommendation by Director Wilcox listing several r easons for denial, and even though the minutes only cursorily refer to some of those reasons, we should not assume any denial was based solely on the reasons l isted in the minutes and not-28-

his letter. In addition, akin to the Broken Arrow ordinance setting out its own method of compliance with the “in writing” requirem ent, Director Wilcox, in his initial letter, set out how the Board would meet th e “in writing” requirement through the Board minutes and a copy of his writtenrecommendation, to which USCC and Mr. Johnson did not object. Finally, on r emand, the Board formally stated reasons for denial which included many of th e reasons listed in the Board meeting minutes and the Director’s recommendation, including references to the OML information and sample ordinance which mentione d safety problems with debris and ice. As to “substantial evidence” supporting the denials , in Broken Arrow this court determined U.S. Cellular offered no evidence concerning the feasibility of co-locating on another tower. Id. at 1137. We stated, “[t]o the extent U.S. Cellular suggests that it was the City’s burden to come forward with evidence concerning the feasibility of co-locating . . . we disagree. The Zoning Ordinance explicitly places this burden on the applicant.” Id. We also said, “[w]e doubt that Congress intended local zoning boards to pay for experts to prove that there are alternative sites for a proposed tower,” and “firml y” rejected the district court’s statement “[t]he opinions expressed by . . . offici als about the existence of other adequate existing locations amount to nothing more than ‘generalized concerns’ which are not adequate to fill the record with subs tantial evidence.” Id. at 1137--29-

38. Finally, we determined the “substantial eviden ce” requirement does not encroach on local land use regulatory power, but in stead “[t]he reviewing court’s task is to determine whether the [local authority’s ] decision, as guided by local law , is supported by substantial evidence.” Id. at 1133 (emphasis added, quotations marks and citation omitted). Stated ano ther way, we “may not overturn the Board’s decision on ‘substantial evide nce’ grounds if that decision is authorized by applicable local regulations and supp orted by a reasonable amount of evidence.” MetroPCS, Inc., v. City & County of San Francisco , 400 F.3d 715, 725 (9th Cir. 2005). In this case, the local ordinance placed the burden on USCC and Mr. Johnson to explain why they could not co-locate on an existing tower, and the record does not show they satisfactorily responded to staff’s questions or requests for clarification on co-location. In addition, wit h regard to alternative property site locations, nothing in the record shows USCC an d Mr. Johnson established the existence of an unnecessary hardship as required bylocal law or otherwise sufficiently explained why alternative locations we re insufficient. See also Second Generation , 313 F.3d at 628, 635 (holding in case with “unnec essary hardship” ordinance that communications company fai led to show no other feasible sites existed, or that the land at issue w as the only location where a tower could provide coverage to cover the gap area). Furthermore, under our own case-30-

precedent, it clearly was not the Board’s responsib ility to get an expert opinion. See Broken Arrow , 340 F.3d at 1137-38. In addition, even a cursory review of this and othe r circuit case law suggests many of the Board’s listed reasons for den ial, even when standing alone, are sufficient to meet the substantial evidence req uirement, so long as the town or city did not impose a blanket prohibition on such t owers. As one example, the Fifth Circuit, in Wichita Falls , looked at the City’s reason for denial, based on the fact a 90-foot tower, like here, failed to signific antly conform to the setbacks listed in its ordinance, noting: [The tower] would have required the City to reduce nearly every guideline listed in the ordinance. The proposed to wer would have stood less than 62.8 feet from three of four property lines, less than 300 feet from the nearest residential use, and less than 300 feet from the boundary of the nearest residential zone. Furthermore, some of the reductions sought by U.S. Cellular would have b een considerable; the tower would have stood only 17.5 feet from one property line and only 25 feet from another. Thus, the evidence before the City Council showed that the proposed tower seriously fa iled to conform to the setbacks listed in [the ordinance]. 364 F.3d at 253, 257 (emphasis added). The court d etermined it need not reach the other reasons for denial as this reason alone c onstituted sufficient evidence for denial, and that the determination was not whether the denial was “unwise” but whether some reasonable evidence supported its conclusion. Id. at 259. Like the Wichita Falls case, the variance requested here is also extremel y substantial in that “[t]he proposed tower would be located 19.4’ f rom the North property line-31-

. . . [and] 25’ from the East and West property lin es.” Aplt. App. at 228. This, together with the various safety and other reasons considered by the Board, clearly demonstrates evidence “a reasonable mind mi ght accept as adequate to support the conclusion reached.” Broken Arrow, 340 F.3d at 1133 (quotation marks and citation omitted).-32-

For these reasons, we conclude that the Board did n ot violate the TCA’s procedural requirements when it denied Mr. Johnson’ s request for a variance from the City’s setback requirements, and we therefore A FFIRM the judgment of the district court.

Entered for the Court PER CURIAM