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Land use decision making in Oregon is highly structured; many parties complain that the formal structure delays the process and increases its cost. State law has long mandated that the approval or denial of a land use application be in writing. All such decisions must include written findings of fact, be based on consideration of the applicable standards and criteria, and be supported by substantial evidence in the record.

All these requirements find their roots in typical state or federal administrative procedures. Failure to comply with these requirements provides a basis for remand of a decision for reconsideration. This obligation applies to all local governments regardless of population or the number or qualification of local planning staff, from the city of Brooks to Wheeler County.

Although these requirements may make land use decision making more expensive and time-consuming for those parties who seek approvals, every now and again cases arise that cause Oregon to appreciate its state land use system. One such case is T-Mobile South LLC v. City of Roswell, Georgia, which is pending review before the U.S. Supreme Court.

T-Mobile South LLC submitted an application to construct in Roswell, Ga., a 108鈥揻oot cell tower resembling a man-made tree. The site, though planned inside a vacant lot, would be in an area zoned for single-family residences within a well-established residential neighborhood.

Following an outpouring of public opposition to the tower, Roswell’s Planning and Zoning Division recommended that the mayor and city council impose certain conditions before approving the application. Specifically, the Planning and Zoning Division recommended that T-Mobile build on another part of the property, erect a fence around the tower and plant pine trees to shield it from view of area residents. After a two-hour public hearing, city council members voted to deny the application.

Two days later, Roswell sent T-Mobile a letter notifying the company that the application was denied, without further elaboration, and referred the company to the minutes of the public hearing. T-Mobile sued Roswell and claimed that the city had not provided substantial evidence that would support denial of the application. T-Mobile also argued that, by prohibiting T-Mobile from building the structure, Roswell violated the Telecommunications Act of 1996. The TCA provides that a state or local government’s denial of 鈥渁 request to place construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.鈥�

The district court did not rule on the substantial evidence question and instead held that Roswell had not met the 鈥渋n writing鈥� component of the TCA, which required the government to state the reason(s) for denying an application. The district court ordered Roswell to grant the permit, and Roswell appealed.

The U.S. Court of Appeals for the Eleventh Circuit held that Roswell had met the 鈥渋n writing鈥� requirement by issuing a written denial and referring to the minutes of the hearing for the reasoning. The U.S. Supreme Court granted review, briefs have been filed and oral argument is scheduled for November.

T-Mobile has argued that the 鈥渋n writing鈥� requirement requires an explanation for the decision considering the approval criteria. It claims that by not requiring such analysis, applicants will have no other choice but to seek judicial review of decisions to determine the reasons for denial, significantly increasing the costs of providing communications services.

Roswell, along with other amici, representing state and local government groups and the American Planning Association, argued that requiring a detailed analysis for the decision would impose stringent procedural requirements that: 1, is not borne out in the plain language of the TCA; and 2, imposes significant additional costs on and unreasonably burdens the ability of local governments to carry out land use regulation.

According to the APA amicus brief, although zoning and land use personnel is not a specifically identified category, census data from 2012 reveals that 71 percent of municipalities do not have a single full-time paid employee to handle 鈥渙ther government administration,鈥� including land use, and others in that group (33 percent) have no more than one part-time paid employee. Finally, the amici argue that if the city erred in not providing a more detailed explanation of its decision, the remedy was a remand and not a reversal giving approval for tower siting without any local government review.

Even though Oregon for years has required an explanation for individualized land use decisions, this step would be a big one for the rest of the country. Even the APA hopes that the U.S. Supreme Court’s analysis sticks with the more banal principles of statutory construction. After all, other parts of the TCA specifically require a more detailed writing, including decisions by the Federal Communications Commissions that must 鈥渟tate that basis for its approval or denial.鈥�

Such differences in language choices typically are deemed deliberate. The court should not conclude that local government planners are not equipped to handle the burdens imposed by explaining a decision in writing. Certainly, if the court were to survey whether local government staffers make written decisions analyzing the criteria based on the facts, Oregon’s local governments, even with a skeleton crew, have been doing this for years. For that, the state and its citizens may be truly grateful.

Note: Both authors serve on the amicus committee for the American Planning Association.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at [email protected].

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at [email protected].