8th Circuit affirms cell tower rejection on aesthetic grounds

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The seemingly simple and hyperlocal decision of locating a cellular phone tower drew a split decision from the 8th U.S. Circuit Court of Appeals.

In a 2-1 decision, the appeals court affirmed Platte County’s denial of a permit for a 153-foot tower that Sprint PCS sought to build near Platte City. County zoning officials denied a special use permit on aesthetic grounds.

The Telecommunications Act of 1996 requires local governments to provide written reasons for denying telecommunications towers. Judge Steven Colloton, joined by Judge Raymond Gruender, said a four-paragraph explanation from the Platte County Commission was “adequate to the task.” The paragraphs essentially mirrored the county zoning code.

However, Judge Kermit Bye dissented, saying the county’s reasoning wasn’t specific enough, and that “a reviewing court is left to speculate as to the real reason or reasons for the commission’s decision.”

Sprint wanted to place the tower on a 7.5-acre parcel of land owned by a local church. The land was zoned for agriculture. The county zoning staff opposed the move, arguing that the tower would “visually dominate an otherwise residential area.” Neighbors feared it would affect their property values.

The case marked the first time the 8th Circuit has addressed what satisfies the “in writing” requirement of the Telecommunications Act. Several other circuits have said the written denial needs to give a sufficient explanation of the reason for the rejection, although one circuit, the 4th, found that a “denied” stamp on a form met the requirements of the law.

The district court in Kansas City, and the appellants in the case, both followed the relatively more stringent requirements used in the majority of circuits. The 8^th Circuit said “we will assume, without deciding, that they are correct.”

The majority said Platte County met the requirement and sufficiently explained its decision, saying “aesthetic concerns can be a valid basis on which to deny Sprint’s permit.” They also were untroubled that the wording for the denial was drawn nearly verbatim from the zoning code, noting that nothing in the statutes prohibited that.

Bye’s dissent, however, said the zoning-code denial wasn’t specific enough for the court to understand why the tower was rejected. He noted that the county said the tower might “prevent development and use of neighboring property,” which Bye said might refer to some property owners’ fears of negative health effects from emissions. Federal law specifically prohibits denial of towers for such reasons, as long as they meet FCC regulations.

Bye also said the Platte County Code sets forth the aesthetic requirements for towers, and Sprint met those requirements.

Michael C. Seamands, of Lashly & Baer in St. Louis, represented Sprint. W. Brian Gaddy, of Gaddy Geiger & Brown in Kansas City, represented Platte County. Neither returned calls seeking comment.

The case is Sprint Spectrum v. Platte County, Missouri, 08-1965.