The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Omnipoint Holdings v. No. 02-1713
ELECTRONIC CITATION: 2004 FED App. 0023P (6th Cir.) City of Southfield, et al.
File Name: 04a0023p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ARGUED: Marc L. Newman, MILLER SHEA P.C., Troy,
_________________ Michigan, for Appellant. Gerald A. Fisher, SECREST,
WARDLE, LYNCH, HAMPTON, TRUEX & MORLEY,
OMNIPOINT HOLDINGS, X Farmington Hills, Michigan, for Appellees. ON BRIEF:
INCORPORATED , doing - Marc L. Newman, E. Powell Miller, MILLER SHEA P.C.,
business as VoiceStream - Troy, Michigan, for Appellant. Gerald A. Fisher, SECREST,
- No. 02-1713 WARDLE, LYNCH, HAMPTON, TRUEX & MORLEY,
Wireless, - Farmington Hills, Michigan, for Appellees.
Plaintiff-Appellant, >
, GUY, J., delivered the opinion of the court, in which
-
v. GILMAN, J., joined. REEVES, D. J. (pp. 13-17), delivered
- a separate dissenting opinion.
-
CITY OF SOUTHFIELD ; - _________________
SOUTHFIELD CITY COUNCIL , -
Defendants-Appellees. - OPINION
- _________________
N
Appeal from the United States District Court RALPH B. GUY, JR., Circuit Judge. Plaintiff,
for the Eastern District of Michigan at Detroit. VoiceStream Wireless (VoiceStream), appeals from the grant
No. 01-72482—Denise Page Hood, District Judge. of summary judgment to defendants, the City of Southfield
and its City Council, in this action alleging violations of the
Argued: December 2, 2003 Telecommunications Act of 1996, 47 U.S.C. § 332, and
claims under 42 U.S.C. § 1983. The district judge found that
Decided and Filed: January 15, 2004 the Telecommunications Act claims were barred by the 30-
day statute of limitations for instituting suit, and that the
Before: GUY and GILMAN, Circuit Judges; REEVES, plaintiff did not have standing to raise the issues asserted in
District Judge.* its § 1983 count. On appeal it appears that VoiceStream only
raises issues that arise under the Telecommunications Act (the
Act). Our review of the record and applicable law convinces
us that summary judgment for the defendants was
appropriately granted and we affirm, although on grounds
*
somewhat different than did the trial judge.
The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
No. 02-1713 Omnipoint Holdings v. 3 4 Omnipoint Holdings v. No. 02-1713
City of Southfield, et al. City of Southfield, et al.
I. forward, however, because the Martin property was still their
first choice and the terms the City proposed as far as lease
VoiceStream is a provider of personal communications rental was concerned required a greater financial outlay than
systems and serves customers in southeastern Michigan. In was acceptable to VoiceStream. The matter was further
order to provide this service, antenna towers are needed at complicated by the fact that the park property has been
various locations. Plaintiff sought to build a 150-foot deeded to the City with a use restriction, and that restriction
monopole antenna tower in Southfield to cover a gap in its would have to be waived by the grantors before a tower could
coverage. On July 12, 2000, plaintiff submitted an be constructed.
application seeking a special use permit to build a tower in
the rear yard of a residence owned by Stuart Martin. This After the Council denied the special use application for the
property was located in an area zoned R-E Single Family Martin property, the plaintiff again began to pursue the
Residential, which was developed with low-rise residential possibility of using the park property. Another special use
homes. Under Southfield’s ordinances, such an application application was filed and a hearing was set before the Plan
goes first before the Planning Commission and then before Commission. Before this hearing could be held, the Plan
the City Council. At the conclusion of its hearing on October Commission became aware that the City Council would not
18, 2000, the Planning Commission voted 5-0 to deny the approve a sale or lease of the park property, so the hearing
application. was cancelled by letter dated June 4, 2001. On July 3, 2001,
this lawsuit was filed.
The City Council has a Site Plan Commission which
considers applications of this nature before they come before II.
the full Council, and this committee discussed with plaintiff
the possibility of placing the tower at other locations in the Because these towers are often not welcome, but need to be
immediate area. For a variety of reasons, the plaintiff did not erected to support an efficient nationwide communication
find any of the other locations to be acceptable. The matter system, the Act affords certain protections to companies like
then went before the City Council on February 26, 2001. plaintiff and provides that the governmental units just cannot
After a hearing, the Council voted 7-0 to deny the application, deny these applications out of hand, but must make a
listing eight reasons for the denial. The action of the Council reasoned and reasonable denial and give reasons in writing for
became final when the minutes of the February 26 meeting the denial. The City of Southfield has an ordinance that deals
were approved on April 9, 2001. with this type of application and the procedures to be
followed. For whatever reason, the City has a number of
Although VoiceStream had rejected initially the other these towers within the city limits and, in fact, has granted all
locations suggested by the City, it did explore with of the previous 23 applications submitted for similar towers.
representatives of the City the possibility of locating the Although the record is silent on this point, one can assume
tower in a nearby City park. These discussions were ongoing that most, if not all, of these towers were not placed in
before the final vote of denial by the Council took place. At residential districts.
one point in November of 2000, the city planner sent a letter
to plaintiff’s attorney setting forth proposed lease terms for The ordinance governing tower applications sets forth
the City property. VoiceStream was reluctant to move certain criteria for the granting or denial of permit
No. 02-1713 Omnipoint Holdings v. 5 6 Omnipoint Holdings v. No. 02-1713
City of Southfield, et al. City of Southfield, et al.
applications. Before acting, the Council held a hearing and
heard from concerned residents as well as two “experts”; one
being the City Planner and the other being an outside Section 5.58D(1)(e) of the City’s Zoning Ordinance.
consultant the City used when applications of this nature were
4. The applicant has not demonstrated that there is no location
before the Council. The reasons the City gave for denial are, outside of a single fam ily residential district for the proposed one
in general, that the residential character of the neighborhood hundred fifty foot (15 0') high mono pole tower which can
would be harmed by a tower of this nature, property values reasonabl[y] meet its coverage and/or capacity needs, contrary
would decline, and the plaintiff had not complied with the to Section 5.58F(1) of the City’s Zoning Ordinance.
city ordinance in sufficient detail to show the technical
5. The subm itted Site Plan sho ws a one hund red fifty fo ot (150 ')
necessity for having to place this tower at or near the high monopole tower design which is not compatible with the
locations at issue here.1 existing character of the proposed site, the neighborhood, or the
general area, contrary to Section 5.58F(2) of the City’s Zoning
Ordinance.
1
6. The submitted Special Use and Site Plan does not meet the
Mo tion by Condino supported by Frasier. requirements of Se ctions 5 .58(F)(3)(a) thro ugh (f) o f the City’s
Zoning Ordinance because there is available for this use, both a
RESOLVED : That GP:1074/SP:1102, the Special Use and Site Plan public school site and a municipal park located on Inkster Road,
Review Request of Voice Stream Wireless to construct a 150 foot high a half mile north of the site. Ad ditiona lly, there is a religious site
mon opo le communications tower and equipment shelter on part of located at the southwest corner of Ten Mile and Inkster Roads
Sidwell Parcel 2419-351-00 7, located at 27390 T en Mile Road , at the and a large, vacant tract of land/open space directly south of the
northeast corner of T en M ile and Inkster Roads, site plan dated February proposed site which could accommodate this use.
15, 2001, and received by the Planning Department on February 20, 2001,
be den ied for the following reaso ns: 7. There are currently twenty three (23) freestanding wireless
communication towers with collocato rs located within the City
1. The submitted Site Plan and Special Use Request for a one which provide very adequate wireless communication services
hundred fifty foot (150') high monopole tower to be located in and coverage in the City in accordance with the purpose and
the rear yard of a single family home is not harmonious with the intent of the City’s Wireless Communications Facilities
surrounding area, which is low rise, single family residential on Ordinance, as outlined in Section 5.58A o f the City’s Zoning
all sides and would be demonstrably injurious to existing and Ordinance.
prop osed neighborhoods and detrimental to the public welfare,
contrary to Section 5.58D(1)(a) and D(1)(b) of the City’s Zoning 8. The subm itted Site Plan adhe res to the applicant’s overall tower
Ordinance. system plan for the Detroit metropolitan area which has
app arently been designated in a manner, unlike the design of any
2. The applicant has not demonstrated a justification for the other wireless company with a tower located in Southfield, that
propo sed one hundred fifty foot (150') height of the proposed applicant claims requires the location of the proposed tower in
mon opo le tower nor provided an evaluation of alternative the rear yard of a single family home rather than modifying the
designs which might result in a lower height, contrary to Section system plan to allow for a location that will not adversely impact
5.58D(1)(d) of the City’s Zoning Ordinance. an exclusively residential area, contrary to Section 5.58D(1)(a)
and D(1)(b) of the City’s Zoning Ordinance.
3. The applicant has not demonstrated why other sites
recommended by the C ity for the proposed one hundred fifty A roll call vote was taken.
foot (150') high monopole tower are no t appropriate, contrary to Jordan, yea[;] Lantz, yea; Frasier, yea; Condino, yea; Lawrence, yea;
No. 02-1713 Omnipoint Holdings v. 7 8 Omnipoint Holdings v. No. 02-1713
City of Southfield, et al. City of Southfield, et al.
Assuming, arguendo, that New Par applies retroactively,
we conclude the actions taken by the Southfield City Council
III. comply with the requirements that are set forth for a valid
“decision in writing.” The council resolution clearly lists the
The Act provides that a person adversely affected by a final reasons for the denial and offers an explanation in support of
action or failure to act by a State or local government may file those reasons. Whether the reasons set forth are sufficient is
an action within 30 days of the local government’s final always a matter that an unsuccessful applicant can challenge
action or failure to act. 42 U.S.C. § 332(c)(7)(B)(v). The trial with a timely filed court action.3
judge held with regard to the Martin site, that defendants’
“final action” which started the statute of limitations running The mandate that the decision must “be separate from the
was the issuance and approval of the minutes of the February written record” requires additional exploration. To begin
26, 2001 Council meeting. This occurred on April 9, 2001. with, there is no guidance in New Par as to what constitutes
Since suit was not filed within 30 days of the April date, the the written record. The phrase “separate from the written
district judge dismissed that portion of plaintiff’s complaint record” was imported from the case of Southwestern Bell
that related to the Martin property. Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001)
(Bell). In Bell the court had occasion to review the decision
Plaintiff offers several reasons why the district court erred of a zoning board of appeals denying a special use permit for
in applying the statute of limitations, but relies most heavily a tower. After the zoning board hearing, the board issued a
on a decision from this court decided after this matter was short and simple decision indicating, at least in part, the
dismissed in the trial court. In New Par v. City of Saginaw, reasons for the denial. The First Circuit not only found that
301 F.3d 390, 395-96 (6th Cir. 2002), we held, inter alia, that this met the “in writing” requirement, but the “substantial
in order to meet the “decision . . . in writing” requirement of evidence” requirement as well. Despite the fact that the TCA
47 U.S.C. § 332(c)(7)(B)(iii), a governmental unit’s decision makes no mention of the writing being in a separate
must (1) be separate from the written record, (2) describe the document, the court also stated: “We conclude, therefore,
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.2
3
As is often the case, when a decision sets forth new requirements for
future guidance, the context for the decision is made up of the facts before
Brateman, yea; Samona, yea. the court at that time. It is next to im possible to set forth a “one size fits
The resolution was ap proved 7 yeas, 0 na ys. all” set of standards, and so the requirements when next applied must take
2
into account the new context. For example, requirements two and three
This section provides that: “Any decision by a State or local in New Par may overlap. If a city turned down a tower application
government . . . to deny a request to p lace, co nstruct, or modify personal because the height of the tower would be a hazard to airplanes landing at
wireless service facilities shall be in writing and supported by substantial a nearby airport, the statement of the reason w ould also be the
evidence contained in a written record.” Id. explanation.
No. 02-1713 Omnipoint Holdings v. 9 10 Omnipoint Holdings v. No. 02-1713
City of Southfield, et al. City of Southfield, et al.
that the TCA requires local boards to issue a written denial requirement is to allow a reviewing court to focus with
separate from the written record.”4 precision on the action that was taken and the reasons
supporting such action. The council resolution at issue here
The factual situation in Bell is different from that in this would afford a reviewing court that opportunity.6
case. The action being reviewed in Bell, as it was in New
Par, is that of the zoning board of appeals. The action being In this regard, the assertion in the dissent that allowing the
reviewed here is that of the city council. Under the charter of council resolution to satisfy the separate writing requirement
the City of Southfield the Council takes formal action by will require applicants “to wade through voluminous meeting
passing a resolution. Just as a court speaks through its orders, minutes to extract the reasons for the denial” does not
the Southfield City Council speaks through its resolutions. comport with the record in this case. Here, VoiceStream had
This formal resolution is a writing separate from the hearing a representative at the council meeting where the final action
record. In fact, in this case there are two or arguably three was taken and knew the application had been denied. A copy
hearing records. There was the hearing before the City Plan of this particular council resolution separate from any other
Commission, the meeting with the Site Plan Commission, and resolutions passed at the same meeting was presumably
the hearing before the City Council. Whatever records were obtainable from the City Clerk in a matter of hours after the
made of those hearings are separate from the resolution action was taken. Indeed, if litigation was contemplated, the
passed by the City Council, although the resolution itself does council resolution is the only document which would
contain the reasons for the denial as is required by New Par.5 definitively show the formal action taken by the council.
Although the minutes of a council meeting will encompass all Additionally unlike a letter or some other means of
the matters considered by the council at that meeting, each notification, there is a date certain when a council resolution
resolution deals with only one discrete subject. In our view becomes effective. The result in this case was that the
this is sufficient to meet the “separate writing” requirement of applicant had considerably more time than 30 days from the
New Par. The primary purpose of the separate writing date it actually learned of the denial to institute suit, since the
council resolution did not become effective on the date of
passage. We can imagine no other document that would be
easier to work with or more useful or informative to an
4
In Lau rence Wo lf Cap ital Mana gem ent Trust v. City of Fe rndale,
2003 W L 18 755 54 (6th Cir. April 10, 2003) (unpublished disp osition), a
case decided after New Par, the panel concluded that a set of zoning board
of appeals minutes met the “in writing” requirement of the TCA, although 6
In Laurence Wo lf, the court, in rejecting one set of zoning board
the pane l ultimately decide d this writing was an impermissible retroactive minutes as meeting the separate writing requirement, stated: “The
cure. January 18, 2000, meeting record does not satisfy the ‘in writing’ test
5
because it is not separate from the meeting’s written record concerning
In this regard the “record” is not to be confused with the type of other Bo ard issues.” 2003 W L 1875 554 at **6. We are not privy to the
verbatim record made in a court of rec ord. Bell is enlighten ing in this record being reviewed in Laurence Wolf; however, we reject the concept
regard: “Passage of the T CA did no t alter the reality that the local boards that a resolution in meeting m inutes will never meet the separate writing
that administer the zoning laws are primarily staffed by laypeople. requireme nt, if it otherwise allows m eaning ful judicial review , simply
Though their decisions are now subject to review under the TCA, it is not because the minu tes con tained other d ispositions or resolutions dealing
realistic to expe ct highly detailed findings of fact and conclusions o f law.” with other subjects. In any event, since Lau rence Wo lf is unpublished , it
Id. at 59. is not binding p reced ent.
No. 02-1713 Omnipoint Holdings v. 11 12 Omnipoint Holdings v. No. 02-1713
City of Southfield, et al. City of Southfield, et al.
applicant or to a reviewing court than the resolution which district court concluded that since plaintiff had no property
embodies the reasons for denial. interest in this property, it had no standing to bring suit. In
our view, plaintiff, under the Act, may have had standing, but
Since we conclude that the resolution of the city council we nonetheless affirm the judgment for defendants on this
meets the New Par standards, the 30-day clock started issue for a much more fundamental reason. The City owned
running when the resolution became final on April 9, 2001. this deed-restricted property, and the plaintiff simply cannot
compel the City to sell or lease a portion of the park if it
In order to avoid the consequences of its late filing, plaintiff chooses not to. Although plaintiff argues that it had a
claims that its application really was for permission to erect “contract to make a contract” based upon the negotiations that
a tower somewhere within its “search ring” which would have had transpired between the parties, we find this argument
included areas adjacent to or near the Martin property. Since totally lacking in merit. Only the City Council through
the plaintiff was still talking to the City about the possibility formal action, after the grantors had agreed to waive the deed
of the public park site, plaintiff contends that there was no restriction, could have authorized this lease. This simply
denial of its “search ring” application until it got the letter never occurred.
from the defendant indicating it would not sell or lease any of
the park property. There are several problems with this AFFIRMED.
“created after the fact” argument, but we need look no further
than the special use application first submitted which clearly
involves only the Martin property. Like the distict judge, we
can understand that the plaintiff might have felt some
reluctance to start a lawsuit while negotiations were ongoing
on the park property. We don’t see that as an insurmountable
problem, however, because the City, having granted 23
previous tower applications, was familiar with the Act and
would have understood if the plaintiff had just come to them
and said, “we have to start this suit to protect our right of
action. It’s not intended as a hostile or unfriendly act, and we
still want to work this out with you.”7
IV.
Plaintiff also attempts to construct a cause of action over
the defendants’ failure to lease a portion of the City-owned
park property for placement of the proposed tower. The
7
Voicestream also co uld have asked the City to agree to waive the
30-day period o f limitations.
No. 02-1713 Omnipoint Holdings v. 13 14 Omnipoint Holdings v. No. 02-1713
City of Southfield, et al. City of Southfield, et al.
______________ focus with precision on the action that was taken and the
reasons supporting such action. The council resolution at
DISSENT issue here would afford a reviewing court that opportunity.”
______________ While I agree with this statement, I also believe that the
“separate writing” requirement’s purpose is to greatly
REEVES, District Judge, dissenting. Because I believe the simplify matters for both the zoning applicant and the court.
majority has misconstrued the holding in New Par v. City of It forces the city to put forth its reasons in a separate
Saginaw, 301 F.3d 390 (6th Cir. 2002), I respectfully dissent. document, preventing the parties from having to wade
In New Par, this court held that through voluminous meeting minutes to extract the reasons
for the denial.1 In many situations, the meeting minutes
for a decision by a State or local government or might not be available to the wireless provider for some time.
instrumentality thereof denying a request to place, The desire to simplify and expedite the process are extremely
construct or modify personal wireless service facilities to relevant, given that the TCA provides wireless providers only
be “in writing” for the purposes of 47 U.S.C. 30 days in which to bring suit.
§ 332(c)(7)(B)(iii), it must (1) be separate from the
written record; (2) describe the reasons for the denial; Further, Southwestern Bell’s statutory construction of the
and (3) contain a sufficient explanation of the reasons for TCA is reasonable. With only a 30-day period to institute an
the denial to allow a reviewing court to evaluate the action, Congress most likely wished to streamline the city-
evidence in the record that supports those reasons. review process by forcing city councils and zoning boards to
issue separate decisions that make it possible for the zoning
New Par, 301 F.3d at 395-96. Here, there is no debate that applicant to have a separate writing which clearly establishes
the City Council met the second and third requirements. Only a denial (supported by reasons for the denial), rather than
the first requirement is disputed. having the denial buried in meeting minutes. This procedure
is efficient, it is extremely easy for the city to satisfy, and I
New Par did not specifically discuss the “separate writing” believe it is the process mandated by New Par.
requirement. Instead, it adopted this requirement from
Southwestern Bell, 244 F.3d 51 (1st Cir. 2001). In In concluding that the City Council’s actions satisfy the
Southwestern Bell, the Court held that “[e]ven where the “separate writing requirement,” the majority argues that when
record reflects unmistakably the Board’s reasons for denying the Council passed the resolution denying VoiceStream’s
a permit, allowing the written record to serve as the writing special use permit, the resolution was actually separate from
would contradict the language of the Act. The TCA
distinguishes between a written denial and a written record,
thus indicating that the record cannot be a substitute for a 1
For this reason, the logic from Laurence W olf Cap ital Mgm t. Trust
separate denial.” Southwestern Bell, 244 F.3d at 60 v. City of Fern dale, 61 Fed. Appx. 204, 211 (6th Cir. 2 003), discussed
(emphasis added). infra, is illustrative because there the court noted that meeting minutes
which discuss only the zoning variance and discuss no other m atters co uld
The majority notes that “[t]he primary purpose of the be “separate from the written record.” In such a situation, there is less
separate writing requirement is to allow a reviewing court to concern over the decision being buried in the minutes because the minutes
discuss only the zoning variance.
No. 02-1713 Omnipoint Holdings v. 15 16 Omnipoint Holdings v. No. 02-1713
City of Southfield, et al. City of Southfield, et al.
the written record, even though the decision was contained [t]he board did not issue any written decision denying the
within the meeting minutes. The majority distinguishes the variance request. Instead, it reflected its denial in the
“minutes” from the “record,” contending that the resolution meeting minutes. The minutes stated the Board based its
passed by the City is not a part of the record, even though it decision on “. . . changes to the character of the
is contained within the meeting minutes. It argues that the neighborhood which would result from construction of
written record only includes the discussion of the resolution, the proposed structure, no hardship being justified by the
but not the resolution itself. petitioner and the problem being self-created.”
With all due respect, I disagree with this analysis because Laurence Wolf, 61 Fed. Appx. at 208.
I believe the terms “written record” and “meeting minutes”
are synonymous. The meeting minutes are the written record. The panel in Laurence Wolf held that these minutes do not
Anything contained in those minutes is part of the written “satisfy the ‘in writing’ test because they were not separate
record. Therefore, the resolutions passed by the Council are from the meeting’s written record concerning other Board
part of the written record because they are contained in the issues.” Id. at 211. Moreover, the writing that was held to be
meeting minutes. Even if one accepts the proposition that a “separate from the written record” in Southwestern Bell was
resolution contained in the minutes is not a part of the written truly separate: the board voted at its meeting to deny the
record, the resolution in this case was not a written decision request, then two days later filed a separate written decision.
separate from the written record. It was contained in the Southwestern Bell, 244 F.3d at 56.
meeting minutes that included the written record. It was not
separate from it. Here, I believe that the City Council’s issuance of its
decision did not comply with New Par. I would include
The majority’s argument significantly narrows the within the definition of “written record” any resolutions that
“separate writing requirement” of New Par. Using the are only memorialized in the minutes and not issued in a
majority’s logic, the only time the “separate writing” separate writing. Thus, I would not consider the board’s
requirement would matter is in a situation where the reasons resolution, contained within the meeting minutes, to be a
for denial are contained in the discussion of the resolution but decision “separate from the written record.” When the board
not in the resolution itself. Such reasoning allows a city formally approved the minutes months later, that writing was
council or zoning board to simply issue its decision through separate from the written record, however, it did not include
its meeting minutes. I do not believe that New Par or the any reasons for the denial.
TCA authorize this result.
The City Council seeks to rely on the brief 30-day statute
In Laurence Wolf, this court found that meeting minutes of limitations to prevent judicial review of its denial of
were not separate from the written record when they VoiceStream’s special use permit. The requirements of New
discussed other board matters. Here, the minutes discussed Par make sense in the context of a 30-day statute of
many other matters. Indeed, the denial in Laurence Wolf was limitations and they should be strictly enforced when
issued in the same fashion as the denial in this case: determining when to commence the TCA’s limitations period.
New Par forces a local board that denies a wireless provider’s
zoning variance to issue a separate decision, supported by
No. 02-1713 Omnipoint Holdings v. 17
City of Southfield, et al.
reasons for the denial. Doing so greatly eases the review
process for the wireless provider, burdened by a 30-day
statute of limitations, at little or no expense to the local board.
Such requirements also simplify judicial review. Because I
believe that the City Council must strictly comply with the
requirements of New Par when attempting to bar litigation via
a statute of limitations claim, I respectfully dissent from the
majority’s conclusion that the City Council’s decision was
“separate from the written record.”
In all other respects, I agree with the majority’s opinion.