## 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. (“Spri nt”), 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 telecommuni cations 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 St ates District Judge for the Western District of Missouri.
-2- § 332(c)(7)(B)(iii). The district court 1 granted summary judgment in favor of Platte County, and Sprint appeals. We concludethat 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 wirele ss cellular phone cove rage 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 agricu ltural district, but is adjacent to several residential subdivisions. The Platte C ounty 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 ar eas, the design of the tower, and surrounding tree coverage, and concluded that Sprint ha d not adequately addr essed how to reduce or eliminate the visual obtrusiveness of the tower. The Commission held a public hearing on the matter, during which the De partment stressed that the tower would visually dominate an area that was largely resi dential, 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 decide d 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 probl ems identified with respect to the first proposal were not resolved by the amende d 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, includi ng locating towers in non-residential areas and minimizing their aesthetic impact. This was so, the report explained, because the tower would “visually dominate an otherw ise residential area,” and because a more substantial buffer than the one offered wa s needed to reduce the adverse aesthetic effect of the tower. The report also st ated that the “proposed telecommunications tower would substantially in jure the value of the neighboring properties as well as compromise the residential setting in the ar ea.” 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 Pl atte City and the school district opposing the tower, five letters from property owners opposing Sprint’s application, and Sprint’s application materi als. 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 memberof the Department , stated that the scale and location of the tower had not ch anged 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 testif ied, stating that the flagpole design was intended to accommodate the previous aes thetic 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 adequa te 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 Speci al 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 eff ect 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. Spri nt moved for summary judgment on that ground, requesting that the district court i ssue an injunction dir ecting 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” requi rement and was supported by “substantial-5- evidence” based on aesthetic concerns al one. 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 mostfavorable 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 Congre ss 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 co mmunications,’” including telecommunication towers. Id. (quoting City of Rancho Palos Verdes v. Abrams , 544 U.S. 113, 115 (2005)). At the same time, the TCA preserve s the authority of local zoning boards “‘over decisions regarding the placement, c onstruction, and modi fication 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 notcomply 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 th e location descri bed 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 conducte d 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 fen ces 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 a nd is not “supported by substantial evidence contained in a written record.”

This court has not addressed what satisfi es the “in writing” requirement of the TCA. Most of the circuits to address th e question have concluded that a “written denial must contain a sufficient explanati on 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 expl anation of the reasons for the denial to allow a reviewing court to evaluate the ev idence 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 decisi on of a local zoning board. See MetroPCS , 400 F.3d at 722; Todd , 244 F.3d at 60.

The Fourth Circuit, by contrast, held th at 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). Th e 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 dec lined 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 th e 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 su fficient 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 “aes thetics,” the Commission’s decision never used that term. Sprint also complains th at the decision does not explain how the tower2 Sprint complains that paragraph D mere ly 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 provi sions 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” requireme nt 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 substantia l 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 Commissi on objected to the proposed tower because its size, location, and relationship to surr ounding screening and landscaping were such that the tower would “dominate the i mmediate neighborhood so as to prevent development and use of neighboring prope rty.” Although the Commission did not use the term “aesthetics,” the deci sion plainly refers to matters that relate to the aesthetic impact of the project – namely, the towe r’s height and location, its tendency to “dominate” the neighborhood, and the extentof landscaping and screening around it. The decision provides sufficient reasoning to permit a meaningful review of whether the administrative record contains subs tantial 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 judi cial review of agency determinations:

Under the substantial evidence st andard 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 Bo ard, the Board’s decision must be affirmed. We will not reject the Board’s decision as unsupported by substantial evidence because there ex ists 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” requireme nt 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 br ackets omitted). Here, the Zoning Order expressly directs the Commission to consideraesthetics 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 towe r,” the “[p]roximity of the tower to residential structures,” the “[s]urrounding topography . . . tree c overage, and foliage,” and the “design of the tower, with particular attention paid to design characteristics that have the effect of reducing or e liminating visual obtrusiveness.” Section 400.440(C) sets forth a host of general guide lines for the location of towers, many of which are related to aesthetics. These gui delines call for the pl acement 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 Z oning Order, including standards on proper illumination, landscaping, and screening in order to “blend the tower . . . into the natural setting.” These provisions vest c onsiderable discretion in the Commission to deny permits based on aesthetics.

Accordingly, aesthetic concerns can be a valid basis on wh ich 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 co mplied with the aesthetics requirements of the Zoning Order, and the decision was base d on generalized aesthetic concerns. The record shows, however, th at the Commission’s decision was buttressed by evidence regarding the specific location in which Sp rint proposed to erect the tower. The Department conducted a visit of the proposedsite, and concluded that the property – although zoned agricultural – was surrounde d by residential neighborhoods, including the Broken Bridge and the C oons 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 residen tial 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 ne gative visual impact that a tower would have on it. The record also contains simulated pictures of the proposed tower, indicating that the proposed site include s 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 substantia l evidence on the record as a whole that the tower’s scale, its proximity to resi dences, and the surrounding environment made approval inappropriate in view of the consid erations outlined in the Zoning Order. A reasonable mind could find adequate eviden ce 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 paragrap h D of the Commission's decision "contain[s] a sufficient explanation of the reasons for th e 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 decisi on satisfies the Telecommunication Act's "in writing" requirement. I also disagr ee the Commission's decision was supported by substantial evidence. I therefore respectfully dissent.

Paragraph D of the Commission's decisi on contained several potential reasons for denying the permit, including (1) the location and size of the tower, (2) the nature and intensity of the operati on conducted in connection withthe 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 ne ighborhood so as to prevent development and use of neighboring properties. Notabl y, 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 sp ecific 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 evid ence that some neighboring property owners objected to the tower due to perceived negative health affects th e tower would create. If this were the reason the Commission determined the tower would prevent development of neighboring pr operty, 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 th e placement, constructi on, and modification of personal wireless service f acilities on the basis of the envi ronmental effects of radio frequency emissions to the extent that su ch facilities comply with the Commission's regulations concerning such emissions."). When the record contains impermissible grounds for a zoning decision, and the e xplanation 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 revi ewing 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 gr ant 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 aesthetic3 If the Commission's decision were truly based on aesthetic concerns, it seems unusual it would rely upon the general statem ent in paragraph D about "development and use of neighboring property," rather than indicate how the tower violated the provision of the zoning code sp ecifically 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, In c. 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 denyi ng Sprint's application, and the other evidence in the record is insufficient to support the Commission's decision.

I respectfully dissent.

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