Opinion
CAUSE NO. 07-582-WDS.
September 29, 2008
MEMORANDUM ORDER
Before the Court is defendant's motion to dismiss and to strike (Doc. 13), to which plaintiff has filed a response (Doc. 16), and defendant a reply (Doc. 21). Defendant seeks to dismiss Counts VIII and IX of the complaint, and to strike paragraphs 32, 38, 47, and 57, as well as plaintiff's request for attorney fees. Subsequent to filing these motions, the parties stipulated to dismissal without prejudice of Counts IV through IX of the complaint (Doc. 27). Accordingly, the Court DISMISSES Counts IV through IX of the complaint. Because defendant's motion to dismiss and to strike (Doc. 13) addresses claims and allegations made in Counts IV through IX of the complaint, that motion is DENIED as moot.
Also before the Court is plaintiff's motion for partial summary judgment on Count I (Doc. 5), to which defendant has filed a response (Doc. 17), and plaintiff a reply (Doc. 19). Plaintiff asserts that defendant violated the Federal Telecommunications Act of 1996 (TCA) by denying plaintiff's special use permit application and its variance application without (1) providing its decision in writing and (2) basing its decision on substantial evidence and that it is entitled to judgment as a matter of law on this claim. 47 U.S.C. § 332(c)(7)(B)(iii).
"Any decision by a State or local government or instrumentality thereof to deny a request to place construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record."
BACKGROUND
Plaintiff, a wireless telecommunications services provider, submitted permit applications to defendant for the purpose of erecting a telecommunications tower on land located at 4300 West Main Street in Belleville, Illinois. Defendant's Zoning Board of Appeals (ZBA) recommended that defendant's City Council (CC) deny plaintiff's application and the CC formally voted to deny the applications in July of 2007. Count I alleges that defendant violated 47 U.S.C. § 332(c)(7)(B)(iii) by failing to deny plaintiff's application in writing and without the support of substantial evidence.ANALYSIS
Plaintiff seeks partial summary judgment on Count I and argues that defendant violated the standards set forth in the TCA by denying plaintiff telecommunications tower permits. A district court will grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c): see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as a matter of law. See, Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999) (citing Celotex, 477 U.S. at 323).
I. Denial "In Writing"
II. Denial Supported by Substantial Evidence
47 U.S.C. § 332 FINDS 47 U.S.C. § 332DENIED. FINDS DENIED.
Defendant maintains that at least two federal circuits disagree on what satisfies the "in writing" requirement. The Fourth Circuit has held that stamping the word "denied" on a zoning application satisfies the requirement. AT T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 429 (4th Cir. 1998) (holding that the condensed minutes from a city council meeting and the application displaying the word "denied" across it satisfied the statutory requirement). The Sixth Circuit, however, has held that the statute requires a separate written record containing an explanation of the denial. New Par v. City of Saginaw, 301 F.3d 390, 395-96 (6th Cir. 2002). District courts in the Seventh Circuit have followed the Fourth Circuit's plain meaning approach. Primeco Personal Commc'ns, L.P. v. Village of Fox Lake, 26 F. Supp.2d 1052, 1061-66 (N.D. Ill. 1998) (holding that a trustee's minutes documenting a denial of a special use application satisfied the "in writing" requirement, but concluding that the denial was not supported by substantial evidence); Iowa Wireless Services, L.P. v. City of Moline, 29 F. Supp.2d 915, 920-23 (C.D. Ill. 1998) (finding that a written memorial of a denial motion satisfied the "in writing" requirement, but that its refusal was not based on substantial evidence); Helcher v. Dearborn County, 2007 U.S. Dist. LEXIS 55779 (S.D. Ind. July 31, 2007) (stating that the county's minutes memorializing a permit denial satisfied the "in writing" requirement).
Plaintiff argues that, even if defendant provided a written denial, doing so only after an applicant files suit in federal district court "precludes review of those decisions, contrary to Congressional intent." Sprint Spectrum L.P. d/b/a Spring PCS v. County of St. Charles, Mo., 2005 U.S. Dist. LEXIS 43590 (E.D.Mo. 2005). The Court notes that the rationale for defendant's denials, as originally expressed during the ZBA hearing and the CC meeting, has been memorialized in defendant's transcript and minutes and is now before the Court for review, thus obviating plaintiff's concerns.