USCOC of Greater Missouri v. County of Franklin, MO (8th Circuit Court of Appeals, March 2, 2011).
The 8th Circuit Court of Appeals, which hears appeals of federal district court decisions from Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, decided that the requisite building permits for a wireless facility should be issued pursuant to the Telecommunications Act of 1996 ("TCA"). In addition, in light of a pending state court claim that challenged the County's approval of a conditional use permit, the 8th Circuit found it necessary to direct the federal district court to enjoin any collateral attacks on its order "as to avoid any further unnecessary delays in the erection of the telecommunications tower, which delay we have held would only frustrate the congressional policies underpinning the TCA."
The present case started when U.S. Cellular filed an action in federal district court under the TCA and Missouri state law after Franklin County initially denied U.S. Cellular's application for a conditional use permit to construct a cellular telephone tower. On August 20, 2008, the federal district court determined that the July 11, 2007, written decision did not satisfy TCA requirements because it did not contain any explanation of the reasons for the denial, i.e., it did not articulate the "substantial evidence" supporting the County's denial of the U.S. Cellular CUP application.
Accordingly, the district court remanded the action to the County for a new hearing and a new written decision. In that same order, the district court stayed the remainder of U.S. Cellular's federal action, thus maintaining jurisdiction in the federal court during the pendency of the County remand proceedings.
Following the district court's remand to the County, the County held rehearings and issued a new written decision on December 23, 2008. In that decision, instead of merely providing the requested written support for the initial denial of U.S. Cellular's application, the County approved U.S. Cellular's conditional use permit. However, U.S. Cellular notified the federal district court that even though the County granted the conditional use permit, the County would not sign it until the County was satisfied that certain conditions were met. Also, U.S. Cellular notified the district court that a third party had filed a lawsuit in state court on January 21, 2009, requesting that the December 23, 2008, County approval be set aside. Apparently, this left the entire matter in a state of uncertainty.
On April 3, 2009, the district court issued an order specifically requesting that the parties file briefs addressing whether U.S. Cellular's First Amended Complaint should be dismissed as moot. On May 8, 2009, U.S. Cellular filed a motion seeking an order from the federal district court requiring the County to issue the conditional use permit along with any other required permits and asking the court to otherwise dispose of all pending motions. The federal district court dismissed the case as moot, and U.S. Cellular appealed to the 8th Circuit.
The 8th Circuit decided that U.S. Cellular's TCA claims were not moot because U.S. Cellular still had not achieved the relief sought in its complaint – namely, its request that Franklin County remove the barriers standing in the way of its construction of a telecommunications tower. Although the County approved U.S. Cellular's condition use application, U.S. Cellular remained unable to begin construction of the tower because Franklin County had not issued the requisite building permit, an impediment that was contemplated by U.S. Cellular's First Amended Complaint. U.S. Cellular's complaint had sought "[a]n expedited order . . . to resolve any issues between the parties as to further site plan and building permit issues."
The 8th Circuit stated that the current situation in Franklin County highlighted the very administrative quagmire that the TCA was enacted to avoid. Given the province of a federal court under the TCA to issue certain mandates when a party has been adversely affected by a local government's failure to act, the 8th Circuit indicated that the matter was ripe for adjudication at the time of dismissal given the local authority's failure to issue the necessary permits. Without power to mandate any and all permits contemplated by the federal claim, the Court indicated it would essentially perpetuate an end run around the requirements of the TCA and thereby allow local regulatory agencies to subvert a federal policy by elevating zoning authority over congressional policy as enacted into law via the TCA.
Anthony Dorland
612) 877-5258
DorlandA@moss-barnett.com