St. Charles Tower, Inc. v. County of Franklin, Missouri (8th Circuit, June 28, 2011).
The following excerpts are from Judge Shepherd's concurrence and dissent and explain the issue:
"I agree with the majority that the consent judgment contravenes state law and is legal only if it was a necessary remedy for a TCA violation. The majority, however, does not decide whether there was a TCA violation or whether ordering the Board to issue a conditional use permit is a necessary remedy for the violation. Instead, the majority vacates the consent judgment based on the conclusion that ordering the issuance of all additional permits is not a necessary remedy. I am troubled that this approach gives no guidance to the district court and unnecessarily delays the litigation, against the goals of the TCA. On remand, the district court can presumably adopt its previous findings in relation to the TCA violation and the conditional use permit, and we will be forced to revisit in the future the issues we could have addressed now. I would affirm the district court’s findings that there was a TCA violation and that ordering the issuance of a conditional use permit was a necessary remedy under the circumstances."
. . .
"Perhaps most troubling is the lack of direction the majority’s opinion gives to the district court. In USCOC of Greater Missouri, we reversed the district court’s conclusion that it did not have authority to issue all necessary building permits, whereas in the instant case, we reverse the district court’s order requiring the issuance of all necessary building permits. The cases cannot be distinguished on the facts because in both, a cellular company asked for the issuance of all necessary building permits as a remedy for the Board’s denial of its conditional use permit in violation of the TCA. I am not sure what the district court must do in the future to avoid reversal, with the practical effect being prolonged litigation in contravention of the TCA’s goal of speedy resolutions."
Anthony A. Dorland
(612) 877-5258
Dorlanda@moss-barnett.com