In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3949

DAN HELCHER, et al.,

Plaintiffs-Appellants,

v.

DEARBORN COUNTY, INDIANA

BOARD OF ZONING APPEALS, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Southern District of Indiana, New Albany Division.

No. 4:06-CV-00102-SEB-WGH—Sarah Evans Barker, Judge.

ARGUED OCTOBER 31, 2008—DECIDED FEBRUARY 9, 2010

Before FLAUM, ROVNER and WOOD, Circuit Judges.

ROVNER, Circuit Judge. Cincinnati Bell Wireless, LLC

(“Bell”) applied for a conditional use permit to construct

a wireless communication facility (essentially, a cellphone

tower) on property owned by Dan and Merry Helcher
2 No. 07-3949

For the sake of brevity, we will refer to the plaintiffs collec- 1

tively as “Bell.” Their interests in the appeal are, for the

most part, aligned.

in Dearborn County, Indiana. When the local Board of 1

Zoning Appeals (“Zoning Board” or “Board”) denied the

application, Bell sued the Board and its members for

violating various provisions of the Telecommunications

Act of 1996, 47 U.S.C. § 332(c). The district court granted

summary judgment in favor of the defendants, and

Bell appeals. We affirm.

I.

Bell, a wireless service provider, wanted to close a gap

in cellphone signal coverage on a stretch of Jamison Road

in Dearborn County, Indiana (“County”). The company

sought to build a cellphone tower on the Helchers’ land,

a parcel zoned “Agricultural” under the Dearborn

County Zoning Ordinance (“Ordinance”). Section 315 of

Article 3 of the Ordinance required that Bell obtain a

conditional use permit from the Zoning Board in order to

build the tower at that site. R. 23, Ex. 1, at 1019. Article 15

of the Ordinance regulates the placement, construction

and modification of cellphone towers in order to minimize their “negative impact on the character and environment of the County and to protect the health, safety

and welfare of the public.” R. 23, Ex. 2, at 1023. Article 9

of the Ordinance governs the use of land zoned Agricultural and allows non-agricultural uses (including

the construction of telecommunications towers) under
No. 07-3949 3

The text of Article 9 was not included in the record on appeal, 2

but was included in the County’s appendix. The Ordinance in its

entirety may be viewed at www.dearborncounty.org/planning/

Official_Documents.htm (last visited Jan. 12, 2010).

certain circumstances. The County employed two con- 2

sultants to assist the Zoning Board in making decisions

related to cellphone towers. Dick Comi of the Center for

Municipal Solutions (“CMS”) and Ron Ebelhar of H.C.

Nutting Company (“Nutting”) worked for approximately twenty months with Bell in preparing the application for a permit to build the tower. CMS and

Nutting had assisted the Zoning Board in reviewing

twelve previous conditional use permit applications

relating to wireless facilities.

As required under the Ordinance, Bell engaged in a preapplication meeting with Ebelhar to discuss the proposed tower. At that August 11, 2004 meeting, Ebelhar

identified eighteen requirements that Bell needed to

address in order for its application to comply with the

Ordinance. The plaintiffs claimed to work diligently to

meet all of the relevant requirements, and on February 9,

2005, they submitted their application to Comi and

Ebelhar for review. Comi responded on February 25, 2005,

with a letter detailing fifteen insufficiencies with the

application. Some of the items were simple documentary

requirements such as signatures from land owners, and

some concerns were more substantive calls for additional calculations, assessments, and reports. Bell provided supplemental information to the consultants
4 No. 07-3949

many times over the next several months in order to

address the concerns raised in Comi’s letter. Bell also

made substantive changes to the plan, such as reducing

the height of the tower from 250 to 190 feet, in order to

eliminate the need to comply with the Federal Aviation

Administration’s requirements for lighting the tower.

The revised plan also moved the tower further from

the property line to comply with setback requirements.

The consultants asked Bell to demonstrate that it could

not “co-locate” the transmitters, that is, use already

existing towers to provide coverage for Jamison Road.

Bell investigated four existing wireless tower structures

and rejected all of them as inadequate to provide the

needed coverage. On January 23, 2006, Comi sent a letter

to the County’s Plan Commission stating that the consultants had completed their review of the application

and recommended granting the conditional use permit

to construct the tower on the Helchers’ property.

The Zoning Board met on March 14, 2006 to consider the

application. Ebelhar reported the findings of his review

of the application and opined that Bell and the Helchers

had met the requirements necessary to construct the

tower, and that the Zoning Board should grant the permit. In every prior permit application for wireless coverage

reviewed by the consultants, the cellphone carrier had been

required to co-locate its transmitters on existing structures.

This was the first instance since the inception of the

Ordinance in which the consultants recommended that the

Zoning Board allow construction of a new tower. A Board

member asked Ebelhar about the visual impact of the

tower, and he stated that it was the least intrusive tower
No. 07-3949 5

possible that would provide the needed service. Another

Board member asked for clarification on who had performed the technical studies to determine whether the

tower was necessary and Ebelhar confirmed that Bell had

done the work and that Ebelhar’s company had reviewed

those studies.

A number of landowners who opposed the building

of the tower spoke at the meeting to express their concerns about the visual impact of the tower and its detrimental effect on property values. A real estate appraiser

addressed property values and concerns regarding potential hazards to children presented by the proposed

tower. A community planner opined at the hearing that

the plaintiffs had not met the requirements of the Ordinance because they had not provided a Visual Impact

Assessment as required by paragraph 23 of Section 1512

of the Ordinance. The Zoning Board also considered a

report filed by Wireless Applications Corporation, a

consulting firm hired by two landowners, Karen and

David Cody. The report conceded that the proposed

tower would provide the desired coverage on Jamison

Road but suggested that other sites could deliver

superior service with a smaller impact on the surrounding community. An engineer from Bell rebutted

that claim by noting that the tower height was necessary

to provide adequate coverage and that Bell had reviewed

and rejected as inadequate four alternate sites for the

tower.

After the testimony, Zoning Board member Patricia

Baker moved to deny the application for a special use
6 No. 07-3949

permit. By a vote of three to one, the Zoning Board denied

the application. At the May 2006 meeting of the Zoning

Board, many disputes arose during the process to

approve the minutes of the March meeting. Members of

the Zoning Board, representatives of Bell and the Helchers,

and objecting landowners all suggested numerous revisions to the minutes. Unable to agree on many points, the

Board tabled approval of the minutes until the next

meeting. In early June 2006, the plaintiffs asked the

Board not to approve the revised minutes and also requested that the Board reconsider its decision to deny

the permit application. At the June meeting, the Board

approved the minutes as revised (“Minutes”) and denied

the plaintiffs’ request to reconsider the denial of the

permit application.

The next month, Bell and the Helchers filed a complaint against the Board and its individual members,

alleging several violations of the Telecommunications

Act of 1996, 47 U.S.C. § 332(c) (the “Act”). Count I alleged

that the Board’s decision was not based on substantial

evidence contained in a written record, as required by 47

U.S.C. § 332(c)(7)(B)(iii). Count II asserted that the approved Minutes of the March 14, 2006 Zoning Board

meeting did not constitute a sufficient written decision as

required by 47 U.S.C. § 332(c)(7)(B)(iii). In Count III, the

plaintiffs contended that the Zoning Board’s decision

unreasonably discriminated against Bell, in violation of

47 U.S.C. § 332(c)(7)(B)(i)(I). Count IV maintained that the

Zoning Board’s decision had the effect of denying the

provision of wireless communication services, in viola-
No. 07-3949 7

tion of 47 U.S.C. § 332(c)(7)(B)(i)(II). Counts V though IX,

which are not at issue in this appeal, alleged violations

of the Constitution and the civil rights of the applicants.

The district court granted the defendants’ motion for

partial summary judgment on the first four counts of

the complaint. Helcher v. Dearborn County, 500 F.Supp.2d

1100 (S.D. Ind. 2007). The court rejected the plaintiffs’

claim that the Zoning Board Minutes were an inaccurate

recording of what went on during the meeting and that

the Minutes were not adequate to meet the Act’s requirement that the decision be “in writing.” The court found

that a written decision was adequate so long as it

informed the applicant of the local government’s

decision denying the application. In this instance, the

court found, the meeting Minutes fulfilled this requirement because the Minutes enabled the court to efficiently

judge the Board’s findings and conclusions against the

record. The court also noted that the Minutes supplied

the reasons underlying the Zoning Board’s decision

by noting the sections of the Ordinance which the applicants failed to satisfy. The court found that the Minutes

allowed for meaningful judicial review of the decision,

and that no more was required by the Telecommunications Act. The court also found that the Zoning Board’s

decision was supported by substantial evidence, that

the denial of the permit did not effectively prohibit the

provision of wireless service, and that the Zoning Board

did not unreasonably discriminate among wireless

service providers. Bell appeals.
8 No. 07-3949

II.

On appeal, Bell argues that the Zoning Board’s decision

does not comply with the “in writing” requirement of the

Telecommunications Act, that the Board’s decision is not

supported by substantial evidence, that the denial of the

permit effectively prohibits Bell from providing wireless

communication services, and that the Zoning Board’s

decision unreasonably discriminated among wireless

providers, all in violation of 47 U.S.C. § 332(c)(7). Before

we address the merits of the arguments, we are obliged

to address our jurisdiction. The defendants sought and

the district court granted partial summary judgment in

favor of the defendants on Counts I through IV of the

complaint. As we mentioned above, the plaintiffs pled

an additional five counts (Counts V through IX) alleging

violations of the Constitution and of their civil rights.

After the court entered its order granting partial summary judgment, the parties filed a “Joint Motion for Final

Judgment.” R. 47. In that motion, the parties expressed

a “desire to [a]ppeal the Entry without the need to

litigate their remaining claims at this time.” R. 47, at 1.

The plaintiffs agreed to dismiss without prejudice the

remaining counts in exchange for a promise from the

defendants to waive any statute of limitations defense

if the plaintiffs later moved to reinstate those claims.

The district court then entered a judgment dismissing

Counts V through IX without prejudice and dismissing

Counts I through IV with prejudice for the reasons

stated in the court’s earlier order granting partial summary judgment. The court stated that its earlier order
No. 07-3949 9

was “now made a final and appealable Judgment there

being no just cause for delay in its entry.” R. 49, at 1.

On appeal, both parties asserted that we have jurisdiction under 28 U.S.C. § 1291, which allows us to decide

appeals of “all final decisions of the district courts of the

United States[.]” The parties’ agreement that “a judicial

determination is a final decision (and thus appealable

under Section 1291), does not make it so.” ITOFCA, Inc. v.

MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000).

We have an independent obligation to determine our

jurisdiction. Id. Whether a decision is final for the purposes of Section 1291 depends on whether the decision by

the district court ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978);

ITOFCA, 235 F.3d at 363. In this case, the court and the

parties expressly reserved to the plaintiffs the right to

reinstate Counts V through IX after the appeal. Thus,

the judgment did not resolve the litigation on the merits,

and Section 1291 may not supply jurisdiction.

Although the district court did not expressly invoke

Federal Rule of Civil Procedure 54(b), the court’s

language tracks that rule, which allows entry of a final

judgment on fewer than all of the claims “only if the

court expressly determines that there is no just reason

for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the

parties does not end the action as to any of the claims

or parties and may be revised at any time before the
10 No. 07-3949

Although the Seventh Circuit has yet to rule on the “in 3

writing” requirement, our own Judge Cudahy considered the

question when sitting by designation on the Ninth Circuit.

See MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d

715, 721-23 (9th Cir. 2005) (Cudahy, J., writing for the panel).

We are greatly aided by his analysis.

entry of a judgment adjudicating all the claims and all

the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).

We need not determine whether the judgment was properly entered under Rule 54, however, because after we

raised this issue at oral argument, the parties entered a

joint stipulation dismissing Counts V though IX with

prejudice. That stipulation “wind[s] up the litigation

and eliminat[es] the bar to our jurisdiction.” JTC Petroleum

Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 776-77 (7th

Cir. 1999). We proceed then to the merits of the appeal.

A.

The Act requires that “[a]ny decision by a State or

local government or instrumentality thereof to deny a

request to place, construct, or modify personal wireless

service facilities shall be in writing and supported by

substantial evidence contained in a written record.” 47

U.S.C. § 332(c)(7)(B)(iii). Bell and the Helchers contend

that the Zoning Board’s decision does not comply

with the Act’s requirement that the decision must be “in

writing.” What is necessary for an adequate writing

under the Telecommunications Act is an issue of first

impression in our circuit. There are differing views 3

among the circuits as to what constitutes an adequate
No. 07-3949 11

writing. See MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 721-23 (9th Cir. 2005) (noting the

circuit split on the issue); New Par v. City of Saginaw, 301

F.3d 390, 395 (6th Cir. 2002) (collecting the views of

several courts); Southwestern Bell Mobile Sys., Inc. v. Todd,

244 F.3d 51 59 (1st Cir. 2001) (noting the broad range of

interpretations of the “in writing” requirement in the

district and circuit courts). Some courts require that local

governments explicate the reasons for their decisions and

link their conclusions to specific evidence in the record.

Omnipoint Commc’ns, Inc. v. Planning & Zoning Comm’n

of Wallingford, 83 F.Supp.2d 306, 309 (D. Conn. 2000) (“[a]

local zoning authority must issue a decision in writing

setting forth the reasons for the decision and linking

its conclusions to evidence in the record”); Illinois RSA

No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 743 (C.D.

Ill. 1997) (the terms “in writing” and “written record”

“plainly require the state or local governments to issue

decisions regarding personal wireless service facilities

in written form, stating the reasons for the decision,

and providing written evidence or a written record of

the proceedings that led to the government entity’s decision”). On the other end of the spectrum is the Fourth

Circuit, which accepted as adequate a stamp of the

word “DENIED” on a zoning permit application. AT&T

Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307, 312-13 (4th Cir. 1999) (writing the

word “denied” on the face of an application to build

a wireless communications tower is adequate to meet the

“in writing” requirement); AT&T Wireless PCS, Inc. v. City

Council of Virginia Beach, 155 F.3d 423, 429-30 (4th Cir.
12 No. 07-3949

1998) (finding that the “in writing” requirement was met

by both the condensed minutes of a council meeting

considering an application for a permit to build a telecommunications tower, and by the word “denied”

stamped on a letter from the planning commission describing the application). In the latter case, the Fourth

Circuit specifically rejected the contention that the

writing must include a statement of “findings and conclusions, and the reason or basis therefor.” Virginia

Beach, 155 F.3d at 430.

In the middle are courts that strike a balance between

a dubious, literal reading of the Act and a pragmatic,

policy-based approach. The purpose of the “in writing”

requirement is to allow for meaningful judicial review

of local government actions relating to telecommunications towers. USCOC of Greater Missouri v. City of

Ferguson, MO, 583 F.3d 1035, 1041 (8th Cir. 2009) (holding

that the central concern of the “in writing” requirement

is to enable effective judicial review of local government

action); MetroPCS, 400 F.3d at 722 (Cudahy, J., sitting

by designation) (same); New Par, 301 F.3d at 395-96

(same); Todd, 244 F.3d at 60 (same). The First Circuit

found that there was no textual basis for requiring

formal findings of fact and conclusions of law. Todd, 244

F.3d at 59. The court noted that local zoning boards are

primarily staffed by laypersons and it would not be

realistic to expect highly detailed findings of fact and

conclusions of law. Id. On the other hand, the Todd court

remarked, permitting local zoning boards to issue

denials that offered no reasons for the decision would

frustrate meaningful judicial review. Todd, 244 F.3d at 60.
No. 07-3949 13

The First Circuit therefore concluded that the written

decision “must contain a sufficient explanation of the

reasons for the permit denial to allow a reviewing court

to evaluate the evidence in the record supporting

those reasons.” Todd, 244 F.3d at 60. The Sixth Circuit

followed suit in New Par, requiring that a decision of a

local government denying a request to place, construct

or modify a wireless tower must describe the reasons for

the denial and contain a sufficient explanation of those

reasons to allow a reviewing court to evaluate the

evidence in the record that supports those reasons. New

Par, 301 F.3d at 395-96. See also Sprint Spectrum, L.P. v.

Platte County, MO, 578 F.3d 727, 732 (8th Cir. 2009) (assuming without deciding that the correct standard for

the “in writing” requirement is the one expressed in

MetroPCS, New Par, and Todd).

We join the First, Sixth and Ninth Circuits, the majority of the courts that have reached this issue. The “in

writing” requirement is met so long as the written decision

contains a sufficient explanation of the reasons for the

permit denial to allow a reviewing court to evaluate the

evidence in the record supporting those reasons. This

standard is not unlike our Circuit Rule 50, which

requires district judges to provide reasons for decisions

that resolve any claim on the merits or terminate the

litigation. Circuit Rule 50 “serves three functions: to

create the mental discipline that an obligation to state

reasons produces, to assure the parties that the court has

considered the important arguments, and to enable a

reviewing court to know the reasons for the judgment.”

DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990). As
14 No. 07-3949

Not every failure to meet the standard set in Circuit Rule 4

50 requires remand. See United States v. Forman, 553 F.3d 585,

590-91 (7th Cir.), cert. denied, 129 S. Ct. 1924 and 129 S. Ct. 2817

(2009) (noncompliance with Circuit Rule 50 does not always

prevent judicial review because the district court’s reasoning

may be apparent from the record); Stoller v. Pure Fishing Inc.,

528 F.3d 478, 480 (7th Cir.), cert. denied, 129 S. Ct. 609 (2008)

(no remand for compliance with Circuit Rule 50 is necessary

when the district court’s reasoning is clear from both the

record and the court’s brief statement). Similarly, not every

failure to meet the standard we have set for the “in writing”

requirement will require reversal or remand.

we discussed above, the primary purpose of the “in

writing” requirement for the Telecommunications Act is

to allow for meaningful judicial review of the decisions

of local governments. Keeping in mind that local zoning

boards typically are not populated with lawyers much

less judges, we cannot expect something akin to a

judicial opinion. Therefore, a decision “in writing” is

adequate if it provides an explanation that allows us, in

combination with the written record, to determine if

the decision is supported by substantial evidence.4

With that standard in mind, we turn to the decision

issued by the Zoning Board. The “writing” issued by the

Board is the seventeen-page “Zoning Board of Appeals

Minutes” for the March 14, 2006 meeting (the same Minutes we referenced earlier). Because the contents of the

Minutes will also be relevant to whether the decision

was supported by substantial evidence, a question we

consider below, we will recount the Minutes in some
No. 07-3949 15

detail. The discussion of Bell’s application began with

the Zoning Board’s Enforcement Officer describing the

Helchers’ land and setting forth the criteria to be used

to evaluate the requested permit (including Articles 3 and

15 of the Ordinance). The Enforcement Officer also reviewed a Staff Report and Site Plan (both of which were

attached to the Minutes and included in the record), and

presented the results of a balloon test at the property.

Ebelhar, the consultant hired by the Zoning Board, then

presented his recommendation that the permit be approved. Ebelhar opined that the applicants had met the

criteria for constructing the tower, and that the tower

was needed to close a gap in coverage. Steve Carr, a

representative of Bell, then testified that co-location was

not possible in this instance, that the tower would be

safe, that little traffic would be generated by the tower,

that there was no way to hide the structure from view, that

the site would not encroach on private property, and that

the tower would operate within FCC requirements. In

response to questions from Board members, Carr also

testified that the site was chosen because it was

high enough to overcome issues with tree foliage and

winding roads, that other sites were not adequate, that

the tower presented no health-related risks linked to

tower transmissions, and that the reduced 190-foot

height of the tower would be adequate even though a 220-

foot tower would be optimal. Another Bell representative

confirmed that Jamison Road coverage was the primary

objective of the tower, and that this road was heavily

traveled.
16 No. 07-3949

The Minutes next detailed the objections of David and

Karen Cody, residents of a subdivision situated adjacent

to the area where the proposed tower would be constructed. The attorney for the Codys submitted a written

statement and introduced a community planner and

professional property appraiser, both of whom testified

later in the hearing. The Codys, through their attorney,

did not dispute the quality of the signal on Jamison Road,

the structural integrity of the proposed tower, or the

fact that the Helchers’ property had no particular

historical significance. The Codys’ attorney instead contested the qualifications of Nutting to study, review and

report on technical issues such as propagation maps. She

also asserted that the Act required a wireless provider

to demonstrate that the gap in coverage existed not for

one provider but for all providers. She contended that

the Act required wireless providers to prove that they

are filling gaps in the least intrusive manner by looking

at all alternatives and ruling out other options. She also

noted that the Act allowed local governments to

regulate the placement of towers, taking into account

construction, location, aesthetic requirements, visual

judgments and the effect on property values. The Codys,

representing a large number of residents in the area of

the proposed tower, presented photographs of several

properties, showing what the tower would look like

from many nearby residences. They opined that the

tower would be in the most visually intrusive location

possible, and presented software-enhanced photographs

based on those taken during Bell’s balloon test, modified to show a scaled, graphical representation of the
No. 07-3949 17

proposed tower. After the Codys expressed their fear that

their property value would decrease significantly, eight

other residents spoke about their fears that the tower

would reduce their property values, change the character

of the neighborhood, and be visually intrusive. The

residents also questioned the necessity for the tower,

whether co-location had been adequately considered,

and whether the loss in property values would also

result in a loss to the county tax base.

The Codys’ attorney then proffered additional objections to the issuance of the permit. First, she asserted

that Bell had failed to submit a completed application

prior to the agenda deadline for the meeting. Second, she

maintained that the Zoning Board should not accept new

information submitted by the applicant at the meeting.

Third, she noted that although Bell had adequate time

to complete its application and supply all information

required by the Ordinance, the company had failed to do

so. She alleged that the application was inaccurate or

incomplete on its face because the property owners

had not signed it, because the proposed lease between

the Helchers and Bell was not signed by Bell and thus

Bell had no property interest in the area, and because

Bell’s agent signed as “Applicant” in violation of the

certification on the face of the application. She asserted

that the application did not meet the requirements and

purposes of Article 15. In particular, aesthetic considerations had been largely ignored. Bell had not responded

to a request for information from the County’s agent

about the necessity of the tower, in violation of Paragraph 1 of Section 1512. Moreover, the application failed
18 No. 07-3949

to meet the requirement of Section 1512, Paragraph 7,

requiring the applicant to show the location of the

nearest resident. The application also failed to conform

to Section 1512, Paragraph 21, which required a written

report demonstrating meaningful efforts to secure

shared use of towers or the use of alternative buildings

or structures.

She noted that the application did not explain why an

agricultural site was needed, given that Section 1514 of

the Ordinance required applicants to demonstrate why

seven other categories of property were inadequate

before agricultural land could be employed for this purpose. She also remarked that Section 1514 required the

applicant to prove that the cell tower was not harmful

to the nature and character of the neighborhood or community, and stated that the residents’ objections demonstrated that the applicants had not met this provision.

The Codys’ attorney also presented the report of Wireless Applications Corporation, a consulting firm contacted by the Codys. Wireless Applications reviewed

Bell’s application and concluded that the Helchers’ property did not serve the best interest of the community.

The consultant suggested alternate sites for the tower

and also recommended that the tower height could be

reduced to 150 feet with a negligible difference in

signal coverage.

The certified real estate appraiser introduced by the

Codys’ lawyer testified that, in his opinion, the proposed

tower would negatively impact property values, although he conceded he could not predict the degree

of impact. The community planner then testified that the
No. 07-3949 19

applicants failed to meet the standards in Article 15,

Section 1512, Paragraph 23, which required the applicants to submit an environmental impact assessment,

including a visual impact assessment that analyzed the

visual effect on adjoining properties. In fact, the visual

impact assessment submitted did not acknowledge that

the tower would be visible from residential areas but

instead indicated it was adjacent to undeveloped

wooded land.

At the end of all testimony, each of the five members

of the Zoning Board spoke about the application. The

Chair, Jim Deaton, remarked that the application did not

comply with Article 3, Section 315, items (b) and (d),

which concerned the effect of the tower on the appearance and character of the surrounding area, as well as

the normal and orderly development and improvement

of surrounding property. Board member Jake Hoog concurred with the Chair’s assessment that the application did not comply with Article 3, Section 315(b). Board

member Patricia Baker agreed that the placement of the

tower would impede the development and improvement

of surrounding properties in violation of Section 315(d).

Board member Mike Hall questioned whether Bell had

in fact considered other areas for placement of the tower.

The final Board member, Jane Ohlmansiek, asserted

that, although the tower would not adversely affect

the surrounding area in some respects, it would not be

harmonious to the existing development of surrounding

properties. She also opined that the applicants had not

presented an adequate visual impact study to the Zoning

Board.
20 No. 07-3949

At the conclusion of all discussion, Zoning Board member Baker moved to deny the application for the conditional use permit to construct the tower at the Helchers’

property because of the applicants’ noncompliance

with Article 3, Sections 315(b) and 315(d); and Article 15,

Section 1514, subparagraph 5 of the Ordinance:

Ms. Baker then made a motion to deny the application for the Conditional Use request to establish a

wireless telecommunications facility on Losekamp

Road as a result of the Applicant’s noncompliance

with the following ordinances: Article 3, Section 315,

Item b, which states that the facility will be designed,

constructed, operated, and maintained so as to be

harmonious and appropriate in appearance with

the existing or intended character of the general

vicinity and which shall not change the essential

character of the area; Article 3, Section 315, Item d,

which states that the facility will not impede the

normal and orderly development and improvement

of the surrounding property for uses permitted in

the district; and Article 15, Section 1514, Sub 5 in

which the Applicant conflicted with the provisions of

the Zoning Ordinance by failing to adequately illustrate that all other hilltops and potential sites in

the area had been investigated.

R. 23, Ex. 28, at 1706. Three members of the Board voted

in favor of the motion and one opposed it. The Chair did

not vote because the Board’s rules permit the Chair to

vote only to break a tie. The motion passed and the

permit was denied.
No. 07-3949 21

The question is whether the Minutes, which we have

just summarized, present an adequate basis for judicial

review of the Board’s decision. We find that the Minutes

are sufficient for that purpose. Our task on appeal is to

determine whether substantial evidence in the record

supports the Board’s decision. 47 U.S.C. § 332(c)(7)(B)(iii).

The Minutes clearly delineate the issues that arose with

the application, the evidence that was presented by

both the applicants and by the residents to the Zoning

Board, the concerns of the applicants and residents of

the area, and the concerns of the Board members. The

Minutes also cite the specific provisions of the Ordinance

that the majority of the voting members found were not

met by the application. The Minutes thus provide an

explanation that allows us, in combination with the

written record, to determine if the decision is supported

by substantial evidence. See MetroPCS, 400 F.3d at 722;

Todd, 244 F.3d at 60. In fact, the Minutes provide a great

deal of detail about the evidence and the applicable

Ordinance provisions. See Platte County, 578 F.3d at 732

(finding a written decision adequately explained that

it was rejecting a proposed tower for aesthetic reasons

where the decision explained that the local government

objected to the tower because its size, location and relationship to the surrounding screening and landscape

were such that the tower would dominate the immediate

neighborhood so as to prevent development and use

of neighboring property); MetroPCS, 400 F.3d at 723

(affirming that a decision met the “in writing” requirement

when it summarized the facts of the dispute, recounted

the proceedings, articulated the reasons for rejecting
22 No. 07-3949

an application and explained the evidentiary basis for

the ruling); New Par, 301 F.3d at 396 (finding a decision

did not meet the “in writing” requirement when it

did not contain any explanation of the reasons for the

denial but simply stated the request was denied “based on

the facts presented and the Board’s determination”); Todd,

244 F.3d at 60 (finding adequate a written decision that

“offers little explanation and few facts” because the

reasons were stated with sufficient clarity to permit an

assessment of the evidence in the record supporting

the reasons). On the threshold question of whether the

Minutes met the “in writing” requirement, we conclude that the Minutes met the standard we set forth

above.

B.

Bell and the Helchers next contend that the Zoning

Board’s decision denying their application for a conditional use permit was not supported by substantial

evidence. Recall that the Telecommunications Act

requires that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to

place, construct, or modify personal wireless service

facilities shall be in writing and supported by substantial

evidence contained in a written record.” 47 U.S.C.

§ 332(c)(7)(B)(iii). The substantial evidence standard is

highly deferential to the local government making the

decision. VoiceStream Minneapolis, Inc. v. St. Croix County,

342 F.3d 818, 830 (7th Cir. 2003). We apply the same test

for substantial evidence under the Telecommunications
No. 07-3949 23

Act that we apply in our review of the decisions of administrative agencies. PrimeCo Personal Commc’ns, L.P. v. City

of Mequon, 352 F.3d 1147, 1148 (7th Cir. 2003); VoiceStream,

342 F.3d at 830. Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate

to support a conclusion.” VoiceStream, 342 F.3d at 830

(quoting Aegerter v. City of Delafield, WI, 174 F.3d 886, 889

(7th Cir. 1999)). The party seeking to overturn the local

zoning board’s decision has the burden of proving that

the decision is not supported by substantial evidence.

VoiceStream, 342 F.3d at 830. We have found that there is

no practical difference between the substantial evidence

standard and the clear error standard, and so the relevant

question is whether the Zoning Board clearly erred in

refusing to issue the permit. PrimeCo, 352 F.3d at 1149. The

Zoning Board rejected the plaintiffs’ application for

a conditional use permit because the application did not

comport with three provisions of the Ordinance.

In particular, the Zoning Board found that the application did not satisfy Article 3, Sections 315(b) and (d),

and Article 15, Section 1514(5). We will examine, in

turn, what evidence in the record supported the Board’s

decision as to each of these provisions.

1.

Section 315(b) states that the Board has the power to

authorize a conditional use permit so long as the conditional use “[w]ill be designed, constructed, operated, and

maintained so as to be harmonious and appropriate in

appearance with the existing or intended character of
24 No. 07-3949

the general vicinity and shall not change the essential

character of the same area.” R. 1, Ex. B, at 9. Although

local governments are entitled to weigh the aesthetic

effect of a wireless tower in deciding whether to permit

its construction, generalized aesthetic concerns are not

alone sufficient to justify a denial of a permit. PrimeCo, 352

F.3d at 1150. See also VoiceStream, 342 F.3d at 831 (because

few people would argue that telecommunications towers

are aesthetically pleasing, a local zoning board’s aesthetic

judgment must be grounded in the specifics of the case).

A blanket opposition to poles, for example, would not

be sufficient evidence for denying the construction of a

wireless facility disguised as a pole. Id. A reasonable

decision whether to approve a permit to construct a

cellphone tower requires the local government to

balance the contribution the tower would make to the

availability of cellphone service against the detriments

the tower presents to the surrounding community.

PrimeCo, 352 F.3d at 1149. The complaints made by

local residents in this case are representative of the

downsides towers present. They often are perceived as

unsightly and are blamed for reducing property values.

Although the statute prohibits as a consideration

the fear of adverse health effects of electromagnetic

radiation from the towers, a local government may consider other safety factors, such as the harm to the environment, the obstruction of vision, and the risk of a tower

falling due to wind or ice. PrimeCo, 352 F.3d at 1149.

Bell again points to the experts’ opinion that there was

no less visually intrusive location on which to place the

tower as an indication that the Board’s findings
No. 07-3949 25

under Section 315(b) were not supported by substantial

evidence. Bell discounts the photo simulations presented

by the Codys and other residents as “generalized” objections to towers. Bell conducted a “balloon test” at the

proposed site and provided photographs to the Board. A

large helium balloon was floated to the height of the

proposed tower and photographs were taken at various

distances and angles. The Codys then used those photographs to extrapolate views of the tower from their property and from other nearby residences and farms. The

Codys presented these photo mock-ups to demonstrate

to the Board that the tower was not harmonious in character to the surrounding area. Many of the nearby homeowners also wrote letters to the Board protesting the

impact of such a structure on the scenery and on their

property values. Bell and the Helchers provided photos

taken largely from public roads but the Codys and other

nearby residents presented views of the tower and the

balloon test from farms and residences nearby. R. 23, at

1465, 1491-1495, 1501-1563. In the Codys’ altered photos,

the tower rises up like a nineteen-story Martian machine

from H.G. Wells’ “War of the Worlds,” marring a landscape of forests and farms. The tower is not in any way

disguised to resemble a more palatable structure, but

stands out alone as an industrial blemish on an otherwise bucolic landscape. It is remarkably out of scale to

any surrounding structures. Of course, Bell argues that

the height is necessary given the topography of the

county, and also contends that the company reduced the

height of the tower as much as possible without

degrading the signal.
26 No. 07-3949

The photographic representations of the tower as

viewed from the property of the Codys and other neighbors, accompanied by the objections of many residents

who purchased land and built homes in this area specifically because of the natural views, provided the Zoning

Board with substantial evidence to reject the permit as nonconforming with Section 315(b). The Zoning Board

weighed the value of closing a signal gap for one wireless provider along a stretch of road against the aesthetic

effect this tower would have on this largely rural

setting and found that this tower at this location was not

harmonious with the appearance or intended character

of the area.

As we discuss below, Bell had not satisfied the Board

that it had adequately considered placing the tower on

land zoned for manufacturing, business, or for highway interchanges. It is not surprising that a 190-foot

industrial-looking tower would not be harmonious with

an agricultural setting, and that is likely one of the reasons that the Ordinance insists that wireless providers

consider seven other categories of zoned property

before resorting to placement on agricultural land. Bell

compares the Board’s rejection of the permit to the

city’s rejection in PrimeCo. But in PrimeCo, the citizens

objected to placement of a tower disguised as a flagpole

in an area where industrialized land uses were

permitted, and where there was no evidence that the

height of the pole (70 feet in that instance) was out of

character for the area. Moreover, the city had suggested

instead disguising the tower as a light pole and moving

it to a different location, even though there was no evi-
No. 07-3949 27

We note that the Helchers own and operate a commercial 5

storage building on their property, and are authorized to

(continued...)

dence that a light pole was any less unsightly than the

proposed flag pole and no evidence that the light pole

would be less visible than the flag pole. PrimeCo, 352

F.3d at 1150-51.

The circumstances here more closely resemble those

of VoiceStream, where the local government denied a

permit to build a tower near a scenic river way. We noted

that the county’s determination that the proposed tower

would adversely affect the aesthetic harmony of the

river way was grounded in the specifics of the case and

was not based on conjecture or speculation. Rather it

was based on an on-site investigation and a map

prepared from the wireless carrier’s crane test, documenting how visible the tower would be from various

nearby locations. VoiceStream, 342 F.3d at 832. Persons

who viewed the crane test, which was similar to the

balloon test in the instant case, testified to the negative

impact the tower would have. This testimony and the

map prepared from the crane test provided substantial

evidence to support the county’s decision to deny the

permit for the tower. Id. Although the Helchers’ property

is admittedly not on a National Scenic Riverway, it is in

a picturesque rural area where a 190-foot structure

would rise high above the tree line, completely out of

character with any other natural or man-made structure

in the vicinity. We conclude therefore that substantial 5
28 No. 07-3949

(...continued) 5

build up to twenty-two storage spaces, each eleven feet by

eleven feet in size. A relatively small commercial storage

building of limited height is far less visible to neighbors than

a 190-foot tower.

evidence supported the Board’s decision to reject the

permit on this ground. See Sprint PCS Assets, L.L.C. v. City

of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009)

(holding that a board’s decision to reject a permit on

aesthetic grounds was supported by substantial evidence

where the evidence included propagation maps, mock-ups

of the proposed tower, a report on the aesthetic values

at stake, public commentary and a presentation from the

wireless carrier); Platte County, 578 F.3d at 733 (finding

that a visit to the proposed tower site, an aerial map

indicating surrounding homes and the residential

character of the area, letters from three nearby residents,

and simulated pictures of the proposed 153-foot tower

supplied substantial evidence to support a decision

rejecting a tower for aesthetic reasons); T-Mobile USA, Inc.

v. City of Anacortes, 572 F.3d 987, 994 (9th Cir. 2009) (objections by residents that a monopole would have a

detrimental impact on surrounding residential property,

that the pole would not be completely screened, and

that it would interfere with scenic views provided substantial evidence supporting a denial of a permit to build

the pole); Omnipoint, 430 F.3d at 534 (holding that a

local zoning board has discretion to rely on the aesthetic

objections raised by neighbors who know the local

terrain and the sight lines of their own homes, and may
No. 07-3949 29

reject aesthetic opinions of experts whose study included

only views from public areas and not from residents’

property).

2.

Section 315(d) similarly empowers the Board to issue

a conditional use permit if the use “[w]ill not impede

the normal and orderly development and improvement

of the surrounding property for uses permitted in the

district.” R. 1, Ex. B, at 9. The Codys testified that they

halted construction on an addition to their home when

they learned that the tower might be built nearby. A real

estate appraiser testified that the tower would have a

detrimental effect on land values, although he could not

offer any specific measure of the predicted downward

trend. This is the thinnest part of the county’s case, and

this factor alone may not have provided substantial

evidence for the decision to deny the permit. We need not

decide what would be needed to meet the substantial

evidence standard in this instance, though, because

the county’s conclusion that the tower would be incompatible with the appearance and character of the area

and its conclusion that the plaintiffs had failed to adequately investigate other kinds of zoned land were supported by substantial evidence.

3.

Section 1514(5) provides that the County may disapprove an application that, among other things, “[c]onflicts
30 No. 07-3949

The application considers each possible co-location site and 6

explains why it is inadequate to provide coverage for Jamison

(continued...)

with the provisions of this Ordinance.” R. 23, Ex. 2, at

1033. Section 1514 supplies a list of nine categories of

property on which wireless transmitters may be placed, in

the order of the County’s preference. The County prefers,

in order from most to least favored, that transmitters

be placed (1) on existing towers or structures without

increasing the existing height of those towers or structures; (2) on property zoned Manufacturing Three; (3)

on property zoned Manufacturing Two; (4) on property

zoned Manufacturing One; (5) on property zoned

Highway Interchange; (6) on property zoned General

Business; (7) on property zoned Restricted Business;

(8) on property zoned Agricultural; and (9) on property

zoned Residential. R. 23, Ex. 2, at 1032. The Helchers’

property was zoned Agricultural, second to the last on

the County’s list of preferences. Only residential neighborhood placement is more offensive to the County’s

stated values than the location selected by the plaintiffs

here. Section 1514 requires applicants seeking to place

towers on lower priority land (such as Agricultural

land) to submit a detailed explanation as to why a higher

priority site was not selected. R. 23, Ex. 2, at 1032-33.

Although Bell arguably has explained why co-location

was not possible in this instance, the company has not

provided a detailed explanation regarding land categories

(2) through (7) above. As the district court noted, the 6
No. 07-3949 31

(...continued) 6

Road. The Board rejected the application, in part, because

Bell failed to show that six other preferred categories of zoned

property could not be used.

plaintiffs did not explain why a transmitter could not be

constructed on property zoned Manufacturing One, Two

or Three; Highway Interchange; General Business or

Restricted Business. Instead, the plaintiffs simply

recited boilerplate claims in their application for each

of these preferred categories of zoned property:

Within or in reasonable proximity of the search area

where new antennae is [sic] required to provide

complete and competitive coverage there exists no

property zoned [zoning designations (2) through (7)]

that accommodates the RF engineering requirements

of the proposed Cincinnati Bell Wireless network

expansion.

R. 23, Ex. 10, at 1309-10. As the district court noted, these

“generic, nonspecific statements are unsupported by

any explanation, evidence of investigation, or other

description indicating that credence is to be granted to

Plaintiffs’ claims that all other sites were adequately

investigated.” Helcher, 500 F.Supp.2d at 1117.

Bell and the Helchers continue to rely on these unsupported statements on appeal. Bell characterizes its

conclusory statements as “uncontradicted evidence” that

Bell “has investigated all feasible alternate locations,” and

faults the Board for failing to offer alternate sites. Appellant’s Brief at 21. This is nothing more than an attempt
32 No. 07-3949

to reverse the burden of finding alternate sites onto the

Zoning Board and its officers, a burden the Ordinance

places squarely on the applicant for a conditional use

permit. Bell also argues that the district court and the

Zoning Board ignored the numerous propagation maps

and RF data provided by Bell, contending that these

documents identified the area in which the tower must

be placed to provide adequate coverage. According to

Bell, the Board’s experts knew from those maps and

documents which locations should be investigated, and

neither the Board nor the court had the expertise

required to evaluate the maps and data. At the Zoning

Board meeting, a Bell representative addressing this

question offered the following testimony to support the

company’s compliance with Section 1514:

The other area with which to review a wireless communications tower request is your checklist of certain

zoning classifications. Rather than going through

that long process of explaining all that, I will simply

refer to Tab 13 that we submitted, and also reiterate

the fact that Cincinnati Bell Wireless would not be

here unless there was a definite need for this facility

to be located here. We take every angle and every

avenue to co-locate on existing structures of height

whether it be water tower, existing cell tower,

rooftops, whatever. If we can utilize and enhance our

network by not having to go through a long zoning

process, we’re going to go through that process because it’s all about servicing the customer, because it

is a customer-based business. So, I would just refer to

chapter—Section 13 that we submitted in writing
No. 07-3949 33

and ask that you list that as the findings established

with Article 15, Section 1514.

R. 23, Ex. 29, at 1721, Tr. at 58. Tab 13 is simply the document containing the conclusory statements that no

land zoned in the preferred categories would accommodate the engineering needs of the proposed tower. In

that document and in other documents, Bell made a good

case for ruling out co-location on existing towers or

structures, but Bell has yet to point to anything specific

showing the company even considered much less ruled

out land in the other categories. Without pointing to

zoning maps or an overlay of zoning maps and propagation maps, for example, the company essentially argues,

“Trust us; we looked.” Bell’s argument amounts to a

claim that the Board and the district court were required

to rubber-stamp the experts’ conclusory statements that

no land zoned in the other six categories would have

satisfied the technical specifications. Neither the Board

nor the court were required to accept unsupported opinions. Given that the only “evidence” that Bell satisfied

Section 1514 consists of Bell’s conclusory statements, we

conclude that the Board’s decision rejecting the permit

for noncompliance with Section 1514 is supported by

substantial evidence.

C.

Bell contends that the Board’s rejection of its application effectively prohibits Bell from providing wireless

communications services. Bell also argues that the

Board’s denial unreasonably discriminates between wire-
34 No. 07-3949

less providers. Neither of these arguments has merit. Our

review of the prohibition-of-service claim is de novo.

VoiceStream, 342 F.3d at 833 (whether a particular zoning

decision violates the Act’s anti-prohibition clause is a

question that a district court determines without

deference to the local zoning board, and an appellate

court’s review of a grant of summary judgment on this

issue is de novo). We considered the meaning of the antiprohibition clause in VoiceStream and concluded that “so

long as the service provider has not investigated thoroughly the possibility of other viable alternatives, the

denial of an individual permit does not ‘prohibit or

have the effect of prohibiting the provision of personal

wireless services.’ 47 U.S.C. § 332(c)(7)(B)(i)(II).” VoiceStream, 342 F.3d at 834-35. In VoiceStream, we joined the

First Circuit in holding that a provider carries a heavy

burden of demonstrating not just that the application

has been rejected but that further reasonable efforts are

so likely to be fruitless that it is a waste of time even to

try. VoiceStream, 342 F.3d at 834 (citing Second Generation

Props., L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir.

2002)). “Under this standard, the provider must show

that its ‘existing application is the only feasible plan’

and that ‘there are no other potential solutions to the

purported problem.’ ” VoiceStream, 342 F.3d at 834 (citing

Town of Pelham, 313 F.3d at 630, 635). As we noted above,

Bell did not demonstrate to the Board’s satisfaction that

it had investigated not only co-location but also six

other categories of zoned land before applying to place

the tower on the Helchers’ agricultural property. That

failure to satisfy Section 1514 of the Ordinance demon-
No. 07-3949 35

strated that the applicants did not meet the standard set

under VoiceStream for a prohibition-of-service claim.

Finally, Bell has failed to demonstrate that the Board

unreasonably discriminated among providers by denying

the permit. The Act provides:

The regulation of the placement, construction, and

modification of personal wireless service facilities

by any State or local government or instrumentality

thereof . . . shall not unreasonably discriminate

among providers of functionally equivalent services[.]

47 U.S.C. § 332(c)(7)(B). We have yet to address what is

needed to make out a claim under this provision of the

Act. Bell contends that the Board’s denial of its permit

application left Bell unable to provide viable competition

to other carriers in Dearborn County. But Bell has not

alleged, much less presented evidence, that the Zoning

Board treated any other carrier more favorably. There is

no allegation, for example, that other carriers were

allowed to construct towers on land zoned agricultural.

The only evidence in the record regarding the Board’s

treatment of other carriers is the undisputed statement

from the Board’s expert, Ebelhar, that every other carrier

that applied for a permit to build a new wireless tower

in Dearborn County since the Ordinance went into effect

had been required to co-locate on an already existing

tower. R. 23, Ex. 29, at 1718, Tr. at 46. It is difficult to

see how Bell can make a claim that these other carriers

were treated more favorably when none had been

allowed to build a new tower since the inception of the

Ordinance.
36 No. 07-3949

Courts interpreting this provision require the plaintiff

to demonstrate that the carriers are functionally equivalent, that the local government treated another carrier

more favorably, and also that the favorable treatment

was unreasonable. See Ogden Fire Co. No. 1 v. Upper

Chichester Twp., 504 F.3d 370, 392 (3d Cir. 2007) (requiring complaining wireless carriers to demonstrate that

another carrier provides functionally equivalent services,

and that the other carrier is similarly situated, i.e., that

the structure, placement or cumulative impact of the

existing facilities makes them as or more intrusive than

the proposed facility); Sprint Spectrum L.P. v. Willoth, 176

F.3d 630, 638-39 (2d Cir. 1999) (holding that the Act

contemplates that some discrimination between providers

is allowed so long as it is reasonable); Virginia Beach,

155 F.3d at 426-28 (finding that the Act contemplates

some discrimination among providers but prohibits only

unreasonable discrimination). Discrimination based on

aesthetics and compatibility with the character of the area

has been held reasonable. Willoth, 176 F.3d at 639; Virginia

Beach, 155 F.3d at 427. Bell has not identified any other

carrier to use as a comparator much less a functionally

equivalent one. Nor has Bell demonstrated that it was

treated less favorably nor that any differing treatment

was unreasonable. Under any formulation of the statute,

Bell’s claim of unreasonable discrimination fails. The

district court correctly entered judgment in favor of the

Zoning Board and its members on this claim.

AFFIRMED.

2-9-10