United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-1965

___________

Sprint Spectrum, L.P., doing business *

as Sprint PCS, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri. 

Platte County, Missouri, *

*

Appellee. * 

___________

Submitted: January 15, 2009

Filed: August 6, 2009

___________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Sprint Spectrum, L.P. (“Sprint”), sued Platte County, Missouri, alleging that the

County’s Planning and Zoning Commission (“Commission”) violated the

Telecommunications Act of 1996 (“TCA”) by denying Sprint’s application for a

special use permit to construct a telecommunications tower. Sprint argued that the

Commission’s decision was neither “in writing” nor “supported by substantial

evidence contained in a written record,” as required by the TCA. 47 U.S.C.
1

The Honorable Dean Whipple, United States District Judge for the Western

District of Missouri.

-2-

§ 332(c)(7)(B)(iii). The district court1

 granted summary judgment in favor of Platte

County, and Sprint appeals. We conclude that the Commission’s denial of the permit

application was “in writing” and “supported by substantial evidence,” and we

therefore affirm.

I.

Sprint is licensed by the Federal Communications Commission to provide

wireless telecommunications services to certain geographic markets, including Platte

County. To improve wireless cellular phone coverage in the area, Sprint sought to

build a telecommunications tower on a 7.47-acre parcel of property owned by a local

church. The property is zoned as an agricultural district, but is adjacent to several

residential subdivisions. The Platte County Zoning Order of 1990 (“Zoning Order”)

permits the construction of telecommunications towers in agricultural districts, but

only if applicants first obtain a special use permit from the Commission.

In June 2005, Sprint submitted its first application for a special use permit to

the Commission. It proposed to construct a 150-foot monopole tower on the church

property. The Platte County Planning and Zoning Department (“Department”), which

is responsible for issuing recommendations to the Commission, reviewed the

application and decided not to support it. In a letter to Sprint, the Department stated

that it had considered several factors listed in the Zoning Order, including the

proximity of the tower to residential areas, the design of the tower, and surrounding

tree coverage, and concluded that Sprint had not adequately addressed how to reduce

or eliminate the visual obtrusiveness of the tower. The Commission held a public

hearing on the matter, during which the Department stressed that the tower would

visually dominate an area that was largely residential, and that the City of Platte City,
-3-

a neighboring jurisdiction, opposed the proposal. At the close of the hearing, the

Commission unanimously denied the permit.

In March 2006, Sprint filed a revised special use permit application, this time

proposing a 153-foot stealth tower disguised as a flagpole. The Department again

reviewed the application, and again decided not to support it. In a second letter to

Sprint, the Department stated that while it appreciated Sprint’s effort to propose a

flagpole instead of a monopole design, the problems identified with respect to the first

proposal were not resolved by the amended application. The Department also

prepared a “Staff Report,” which contained a more detailed explanation of its reasons.

The report stated that the proposal failed to advance several of the Zoning Order’s

goals for telecommunication towers, including locating towers in non-residential areas

and minimizing their aesthetic impact. This was so, the report explained, because the

tower would “visually dominate an otherwise residential area,” and because a more

substantial buffer than the one offered was needed to reduce the adverse aesthetic

effect of the tower. The report also stated that the “proposed telecommunications

tower would substantially injure the value of the neighboring properties as well as

compromise the residential setting in the area.” Finally, the report stated that the

Platte County R-III School District opposed the permit request. 

The Commission held a hearing to consider Sprint’s amended application. The

Commission had before it an administrative record that contained, among other

documents, the Department’s letter and Staff Report, letters from Platte City and the

school district opposing the tower, five letters from property owners opposing Sprint’s

application, and Sprint’s application materials. Sprint’s application included a site

plan of the proposed tower, maps of the area, and simulated photographs and drawings

of the tower.

At the hearing, Jason Halterman, a member of the Department, stated that the

scale and location of the tower had not changed from the first proposal, and that the
-4-

tower would depress property values and continue to have an adverse aesthetic impact

on the area. Halterman also explained that Platte City and the school district opposed

the permit. Sprint’s representative testified, stating that the flagpole design was

intended to accommodate the previous aesthetic objections to the monopole design,

and that Sprint had no other option but to place the tower in the proposed location.

In addition, Sprint’s representative urged that telecommunications towers need to be

relatively close to people to provide adequate cellular coverage, and that towers in

residential areas do not affect property values.

The Commission voted unanimously to deny Sprint’s revised application for

a special use permit, recording its decision in a four-page document entitled “Findings

of Fact, Conclusions of Law and Special Use Permit.” The Commission’s written

decision set forth several reasons for denial of the application, including conclusions

that the tower would have a negative effect on property values and would “dominate

the immediate neighborhood so as to prevent development and use of neighboring

property.”

In May 2006, Sprint brought an action against Platte County in the district

court, asserting, among other claims, that the Commission’s denial of its application

for a special use permit was neither “in writing” nor supported by “substantial

evidence,” as required by the TCA. Sprint moved for summary judgment on that

ground, requesting that the district court issue an injunction directing Platte County

to grant Sprint’s application for a special use permit. Platte County opposed Sprint’s

motion, urging that substantial evidence in the administrative record supported the

Commission’s decision to deny the permit based on the tower’s adverse aesthetic

impact and negative effect on property values.

The district court denied Sprint’s motion and sua sponte granted summary

judgment in favor of Platte County. The court concluded that the Commission’s

decision satisfied the “in writing” requirement and was supported by “substantial
-5-

evidence” based on aesthetic concerns alone. The court concluded that Platte

County’s claim that the proposed tower would reduce property values was not

supported by the record. Following the court’s judgment, Sprint voluntarily dismissed

the remaining counts in its complaint with prejudice, thus creating a final, appealable

judgment. See Great Rivers Co-op of Se. Iowa v. Farmland Indus., Inc., 198 F.3d

685, 688 (8th Cir. 1999).

II. 

Sprint argues that the district court erred in granting summary judgment in favor

of Platte County. We review the district court’s grant of summary judgment de novo,

viewing the evidence in the light most favorable to the non-moving party. Level 3

Commc’ns, L.L.C. v. City of St. Louis, 477 F.3d 528, 553 (8th Cir. 2007). Summary

judgment is appropriate if there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The TCA “was intended by Congress to foster competition among

telecommunications providers, to improve the quality of their services, and to

encourage the rollout of new technologies without delay.” USCOC of Greater Iowa,

Inc. v. Zoning Bd. of Adjustment, 465 F.3d 817, 820 (8th Cir. 2006). To achieve these

goals, the TCA reduces the “‘impediments imposed by local governments upon the

installation of facilities for wireless communications,’” including telecommunication

towers. Id. (quoting City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115

(2005)). At the same time, the TCA preserves the authority of local zoning boards

“‘over decisions regarding the placement, construction, and modification of personal

wireless service facilities,’” subject to certain substantive and procedural limitations.

Id. (quoting 47 U.S.C. § 332(c)(7)(A)). One such limitation, codified at 47 U.S.C.

§ 332(c)(7)(B)(iii), requires that a local board’s denial of a permit to construct a

telecommunications tower “be in writing and supported by substantial evidence

contained in a written record.”
-6-

The Commission provided four reasons for its decision, set forth in paragraphs

lettered A through D:

A. The proposed Special Use does not comply with all applicable

provisions of the Platte County Zoning Order of 1990, including use

regulations, height and area regulations, parking regulations and building

requirements.

B. The proposed Special Use at the location described herein will

adversely affect the welfare or convenience of the public.

C. The proposed Special Use will cause substantial injury to the value of

the property in the neighborhood in which it is to be located.

D. The location and size of the Special Use, the nature and intensity of

the operation involved in or conducted in connection with it, and the

location of the site with respect to the streets giving access to it are such

that the Special Use will dominate the immediate neighborhood so as to

prevent development and use of neighboring property in accordance with

the applicable zoning district regulations. In making this determination,

consideration has been given to the location, nature and height of the

buildings, structures, walls and fences on the site and the nature and

extent of landscaping and screening on the site.

Sprint argues that the Commission’s decision to deny its application for a permit does

not satisfy the “in writing” requirement and is not “supported by substantial evidence

contained in a written record.” 

This court has not addressed what satisfies the “in writing” requirement of the

TCA. Most of the circuits to address the question have concluded that a “written

denial must contain a sufficient explanation of the reasons for the permit denial,”

although it need not set forth “formal findings of fact and conclusions of law.” Sw.

Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59-60 (1st Cir. 2001); see MetroPCS, Inc.

v. City & County of San Francisco, 400 F.3d 715, 722 (9th Cir. 2005); New Par v.
-7-

City of Saginaw, 301 F.3d 390, 395-96 (6th Cir. 2002). On this view, decisions by

local boards “must (1) be separate from the written record; (2) describe the reasons for

the denial; and (3) contain a sufficient explanation of the reasons for the denial to

allow a reviewing court to evaluate the evidence in the record that supports those

reasons.” New Par, 301 F.3d at 395-96. These courts conclude that something more

than a bare written statement of denial is necessary, because the judicial review

contemplated by the TCA is frustrated if a reviewing court has no means to ascertain

the rationale behind the decision of a local zoning board. See MetroPCS, 400 F.3d at

722; Todd, 244 F.3d at 60.

The Fourth Circuit, by contrast, held that the stamping of the word “denied” on

a zoning application, without any statement of reasons for the decision, satisfies the

“in writing” requirement of § 332(c)(7)(B)(iii). AT&T Wireless PCS, Inc. v. City

Council, 155 F.3d 423, 429 (4th Cir. 1998). The court reasoned that “Congress knows

how to demand findings and explanations” in statutes, as evidenced by its choice of

language in other sections of the TCA itself, and yet it declined to do so in subsection

(B)(iii). Id. at 429-30. Thus, a requirement of anything more than the stamping of the

word “denied” would have the effect of “importing additional language into the

statute.” Id. at 429.

The district court followed the majority view. The parties agree on appeal that

this was the right approach, and we will assume, without deciding, that they are

correct. In applying this standard for “in writing,” the parties further agree that the

Commission’s decision is “separate from the written record” and “describe[s] the

reasons for the denial.” New Par, 301 F.3d at 395. They dispute, however, whether

the Commission’s explanation provided “a sufficient explanation of the reasons for

the denial” to permit a reviewing court to examine the record for evidence

substantiating those reasons. Id. Sprint argues that while Platte County now defends

the decision based on concerns about “aesthetics,” the Commission’s decision never

used that term. Sprint also complains that the decision does not explain how the tower
2

Sprint complains that paragraph D merely recites section 400.760(D)(4) of the

Zoning Order, but nothing in the statutory “in writing” requirement precludes a zoning

board from citing a local zoning code’s provisions as the reason for a denial. The

denial was literally in writing, and accepting the position of the parties that the written

denial must furnish a statement of reasons to facilitate judicial review, an

incorporation of the Zoning Order in this case provides adequate guidance concerning

the Commission’s rationale.

-8-

will “prevent development and use of neighboring property,” or cite any specific facts

from Sprint’s application to support its conclusion.

We conclude that paragraph D of the Commission’s decision provides sufficient

detail to satisfy the “in writing” requirement under the TCA. Under the standard for

“in writing” embraced by the parties and three circuits, a local zoning board need only

provide an explanation that is sufficient to permit meaningful judicial review of

whether the record contains substantial evidence to support the board’s decision.

Congress undoubtedly recognized that local boards are “primarily staffed by

laypeople,” and that “it is not realistic to expect highly detailed findings of fact and

conclusions of law.” Todd, 244 F.3d at 59. 

Viewed in this light, paragraph D of the Commission’s decision is adequate to

the task. It explains that the Commission objected to the proposed tower because its

size, location, and relationship to surrounding screening and landscaping were such

that the tower would “dominate the immediate neighborhood so as to prevent

development and use of neighboring property.” Although the Commission did not use

the term “aesthetics,” the decision plainly refers to matters that relate to the aesthetic

impact of the project – namely, the tower’s height and location, its tendency to

“dominate” the neighborhood, and the extent of landscaping and screening around it.

The decision provides sufficient reasoning to permit a meaningful review of whether

the administrative record contains substantial evidence to support the Commission’s

conclusion.2
-9-

We also conclude that the Commission’s denial of the application based on the

reasons stated in paragraph D is “supported by substantial evidence contained in a

written record.” 47 U.S.C. § 332(c)(7)(B)(iii). In making this determination, we

follow the traditional standard used for judicial review of agency determinations:

Under the substantial evidence standard we cannot substitute our

determination for that of the administrative fact-finder just because we

believe that the fact-finder is clearly wrong. If the Board’s findings are

supported by some substantial level of evidence (but less than a

preponderance) on the record as a whole (contrary evidence may not

simply be ignored on review) so that a reasonable fact-finder could reach

the same conclusion as did the Board, the Board’s decision must be

affirmed. We will not reject the Board’s decision as unsupported by

substantial evidence because there exists the possibility of drawing two

inconsistent conclusions from the evidence.

USCOC, 465 F.3d at 821 (internal quotations, brackets, and citations omitted).

The TCA’s “substantial evidence” requirement is “directed at whether the local

zoning authority’s decision is consistent with the applicable local zoning

requirements.” VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 830

(7th Cir. 2003) (internal quotation and brackets omitted). Here, the Zoning Order

expressly directs the Commission to consider aesthetics in deciding whether to permit

the construction of towers. Section 400.440(E)(3), which governs the factors to be

weighed in reviewing tower applications, requires consideration of aesthetics,

including the “height of the proposed tower,” the “[p]roximity of the tower to

residential structures,” the “[s]urrounding topography . . . tree coverage, and foliage,”

and the “design of the tower, with particular attention paid to design characteristics

that have the effect of reducing or eliminating visual obtrusiveness.” Section

400.440(C) sets forth a host of general guidelines for the location of towers, many of

which are related to aesthetics. These guidelines call for the placement of towers in

non-residential areas and the construction of towers in ways that “minimize the
-10-

adverse visual impact upon onlookers.” Section 400.440(C)(13) provides the most

specific aesthetics requirements in the Zoning Order, including standards on proper

illumination, landscaping, and screening in order to “blend the tower . . . into the

natural setting.” These provisions vest considerable discretion in the Commission to

deny permits based on aesthetics. 

Accordingly, aesthetic concerns can be a valid basis on which to deny Sprint’s

permit, so long as the aesthetic judgment is “grounded in the specifics of the case” and

not based on “generalized aesthetic concerns . . . that are applicable to any tower,

regardless of location.” Todd, 244 F.3d at 61. Sprint argues that the Commission’s

decision is unsupported, because Sprint complied with the aesthetics requirements of

the Zoning Order, and the decision was based on generalized aesthetic concerns. The

record shows, however, that the Commission’s decision was buttressed by evidence

regarding the specific location in which Sprint proposed to erect the tower. The

Department conducted a visit of the proposed site, and concluded that the property –

although zoned agricultural – was surrounded by residential neighborhoods, including

the Broken Bridge and the Coons Valley View subdivisions. At the zoning meeting,

a member of the Department testified about the tower’s proximity to nearby

residences. He displayed an aerial map indicating the surrounding homes, and stated

that a 153-foot tower at the proposed site would “visually dominate an otherwise

residential area.” The Staff Report reiterated these concerns, noting that a tower of

that magnitude would disrupt the residential setting in the area. Three owners of

nearby homes sent letters to the Commission, in which they cited the residential

character of the specific location and the negative visual impact that a tower would

have on it. The record also contains simulated pictures of the proposed tower,

indicating that the proposed site includes some trees and foliage, but nothing that

would come close to minimizing the visual impact of a 153-foot tower.

Keeping in mind that the substantial evidence standard is “essentially

deferential,” MetroPCS, 400 F.3d at 725 (internal quotation omitted), we conclude
-11-

that the Commission had before it substantial evidence on the record as a whole that

the tower’s scale, its proximity to residences, and the surrounding environment made

approval inappropriate in view of the considerations outlined in the Zoning Order. A

reasonable mind could find adequate evidence in the record grounded in the specifics

of the case to support the Commission’s legitimate concerns about aesthetics.

* * *

The judgment of the district court is affirmed.

BYE, Circuit Judge, dissenting.

I do not believe paragraph D of the Commission's decision "contain[s] 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." Sw. Bell Mobile

Sys., Inc. v. Todd, 244 F.3d 51, 59 (1st Cir. 2001). As a consequence, I disagree with

the conclusion that the Commission's decision satisfies the Telecommunication Act's

"in writing" requirement. I also disagree the Commission's decision was supported

by substantial evidence. I therefore respectfully dissent.

Paragraph D of the Commission's decision contained several potential reasons

for denying the permit, including (1) the location and size of the tower, (2) the nature

and intensity of the operation conducted in connection with the tower, and (3) the

location of the tower with respect to the streets giving access to it would be such that

the tower would dominate the immediate neighborhood so as to prevent development

and use of neighboring properties. Notably, paragraph D simply mirrored the first

four of seven general standards listed in the Platte County Code for granting or

denying special use permits. See App. A123.
-12-

Because the Commission's decision is not specific as to which of the general

standards the tower transgressed, a reviewing court is left to speculate as to the real

reason or reasons for the Commission's decision. We cannot determine why, for

example, the Commission believed Sprint's tower would "prevent development and

use of neighboring property in accordance with the applicable zoning district

regulations." The record contains evidence that some neighboring property owners

objected to the tower due to perceived negative health affects the tower would create.

If this were the reason the Commission determined the tower would prevent

development of neighboring property, it would be an impermissible basis upon which

to deny the permit. See 47 U.S.C. § 332(c)(7)(B)(iv) ("No State or local government

or instrumentality thereof may regulate the placement, construction, and modification

of personal wireless service facilities on the basis of the environmental effects of radio

frequency emissions to the extent that such facilities comply with the Commission's

regulations concerning such emissions."). When the record contains impermissible

grounds for a zoning decision, and the explanation given for the decision is not

specific enough to determine whether the decision was based on those grounds or

permissible ones, I do not believe a reviewing court can determine whether the

decision complies with the Telecommunications Act.

I also do not agree the Commission's decision was supported by substantial

evidence. The district court based its grant of summary judgment on Platte County's

post hoc argument that aesthetic concerns about the tower supported the Commission's

decision. As Sprint notes, however, none of the four reasons given by the

Commission for denying the permit specifically refer to aesthetic concerns about the

tower as the reason for denying the special use permit. Moreover, the Platte County

Code had a section specifically labeled "Aesthetics" setting forth the aesthetic

requirements for towers, see App. A117-18, and Sprint complied with those

requirements; therefore, the Commission could not base its denial on aesthetic
3

If the Commission's decision were truly based on aesthetic concerns, it seems

unusual it would rely upon the general statement in paragraph D about "development

and use of neighboring property," rather than indicate how the tower violated the

provision of the zoning code specifically addressing aesthetics.

-13-

concerns.3

 See State ex rel. Union Elec. Co. v. Univ. City, 449 S.W.2d 894, 901 (Mo.

Ct. App. 1970) (indicating the action of a governing board is illegal when it is not

based upon the guidelines set forth under an ordinance meant to guide administrative

discretion). A local zoning authority does not have discretion to deny a permit to

construct a cellular tower if the proposal meets the relevant standards within the

zoning regulations. SBA Commc'ns, Inc. v. Zoning Comm'n of the Town of

Brookfield, 112 F. Supp. 2d 233, 239-40 (D. Conn. 2000). Thus, aesthetic concerns

cannot be the basis for denying Sprint's application, and the other evidence in the

record is insufficient to support the Commission's decision.

I respectfully dissent.

______________________________