S.D. Indiana Notes Split Re Meaning of "In Writing" Requirement under Telecommunications Act

Per Helcher v. Dearborn County, Slip Copy, 2007 WL 2249068 (S.D.Ind . Jul 31, 2007) (NO. 4:06-CV-00102SEBWGH):

Plaintiffs further maintain that the Board's denial of their conditional use permit application was not "in writing," as mandated by the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii). The text of the Telecommunications Act does not define precisely what is meant by a "writing," and our research suggests that the Seventh Circuit has not yet had the opportunity to interpret this provision. FN11 Other courts, however, have construed the writing requirement imposing differing degrees of stringency. See generally APT Pittsburgh Ltd. Partnership v. Penn Township Butler County of Pennsylvania, 196 F.3d 469, 474 n. 4 (3rd Cir.1999) (noting the lack of uniformity among courts as to the issue).

FN11. In VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 831 n. 4 (7th Cir.2003), the Seventh Circuit noted that, because the parties therein did not dispute that the Board's decision met the writing requirement, it had "no occasion to consider the 'in writing' requirement of § 332(c)(B)(iii) at this time." Id. The Court cited New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir.2002), Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51, 60 (1st Cir.2001), and AT & T Wireless PC S, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423, 430 (4th Cir.1998), all discussed infra, demonstrating its awareness of the circuit split on this issue; however, it did not indicate whether it considered any of the approaches taken in these cases persuasive.

Plaintiffs attempt to persuade us to adopt an approach similar to that employed by the Sixth Circuit in New Par and by the First Circuit in Southwestern Bell. In New Par, the Sixth Circuit interpreted the Telecommunications Act's "in writing" requirement to mean that the denial "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." 301 F.3d at 395. The First Circuit's approach in Southwestern Bell is similar. 244 F.3d at 60. Under these standards, Plaintiffs argue, the Board's minutes do not suffice as a separate written decision under the Act. Moreover, Indiana statute requires that a zoning board "shall in all cases heard by it make written findings of fact," ( Ind.Code § 36-7-4-915), which courts have interpreted to require specific findings that enable a court to review the decision intelligently. Carlton v. Board of Zoning Appeals, 245 N.E.2d 337 (Ind.1969). Plaintiffs maintain that the written decision rendered here by the Board in its meeting minutes "is a mere restatement of the statutory requirements of the [Dearborn County Zoning] Ordinances" and provides nothing beyond conclusory statements. Pls.' Mem. at 20.

The Board proposes that we adopt the approach taken in the Northern District of Illinois in Primeco Personal Communications v. Village of Fox Lake, 26 F.Supp.2d 1052 (N.D.Ill.1998). In that case, the court, noting that the writing requirement was a matter of first impression for the Seventh Circuit, sought "to predict how the Seventh Circuit would rule on the issue." Id. at 1061. The court analyzed the legislative context in which the Telecommunications Act was enacted and noted its "radical" intrusion into the traditionally local domain of land-use decisions. The court reasoned that Congress could have, had it chosen to, articulated extensive requirements for the "in writing" provision of the Telecommunications Act (as, for example, it did for the writing requirement in the Administrative Procedure Act)-but it did not do so. Therefore, the court concluded that, "given the comity interests implicated under these circumstances, we will not impute to Congress the intent to impose more of a burden than that expressly dictated by the Act." Id. at 1062. Accordingly, a written denial "need only notify the applicant of the local government's decision denying the application." Id. at 1061. See also AT & T Wireless, 155 F.3d at 430 ("The simple requirement of a 'decision ... in writing' cannot reasonably be inflated into a requirement of a 'statement of ... findings and conclusions, and the reasons or basis therefor.' ").

We find the Fox Lake court's reasoning persuasive, and hold that the Board's decision does fulfill the requirements of the Telecommunications Act. The Board's written record of the denial enables us to "efficiently judge [its] findings and conclusions against the evidence and the record." Illinois RSA No. 3, Inc. v.. County of Peoria, 963 F.Supp. 732, 740 (C.D.Ill.1997). The fact that these findings are contained within the minutes of the meeting rather than in a separate document does not change our view. See Fox Lake, 26 F.Supp.2d 1052 (finding that the zoning body's minutes constituted a writing under the Telecommunications Act).