United States Cellular Telephone of Greater Tulsa, L.L.C. v. City of Broken Arrow

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 19 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES CELLULAR
TELEPHONE OF GREATER TULSA,
L.L.C., an Oklahoma Limited Liability
Company,

Plaintiff - Appellant,

v.
No. 02-5128
CITY OF BROKEN ARROW,
OKLAHOMA,

Defendant - Appellee.

UNITED STATES CELLULAR
TELEPHONE OF GREATER TULSA,
L.L.C., an Oklahoma Limited Liability
Company,

Plaintiff - Appellee,

v. No. 02-5172

CITY OF BROKEN ARROW,
OKLAHOMA,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D. Ct. Nos. 01-CV-0550EA(J) and 01-CV-0518E(M))
John E. Brightmire, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa,
Oklahoma, appearing for Plaintiff United States Cellular Telephone of Greater
Tulsa, L.L.C.

Elizabeth Anne Wilkening, Deputy City Attorney, Broken Arrow, Oklahoma,
appearing for Defendant City of Broken Arrow.

Before TACHA, Chief Judge, BRISCOE, Circuit Judge, and SHADUR, * District
Judge.

TACHA, Chief Circuit Judge.

United States Cellular Telephone of Greater Tulsa, L.L.C. (“U.S. Cellular”)

brought two separate suits in federal court, challenging decisions by the City of

Broken Arrow, Oklahoma (“the City”), denying specific use permit (“SP”)

requests for the construction of cellular transmission towers. On October 2, 2002,

the district court reversed the City’s denial of SP-149, concluding that the City’s

denial violated the Telecommunications Act because it was not supported by

“substantial evidence.” United States Cellular Telephone of Greater Tulsa,

L.L.C. v. The City of Broken Arrow, Oklahoma, No. 01-CV-0518-E(M) (N.D.

Okla. Oct. 2, 2002) (order granting plaintiff’s motion for summary judgment)

(“U.S. Cellular I”). On July 18, 2002, the district court upheld the City Council’s

*
Honorable Milton I. Shadur, Senior District Judge for the Northern
District of Illinois, sitting by designation.

-2-
denial of SP-150, concluding that “substantial evidence” supported the City’s

denial. United States Cellular Telephone of Greater Tulsa, L.L.C. v. The City of

Broken Arrow, Oklahoma, No. 01-CV-0550-EA(J) (N.D. Okla. July 18, 2002)

(order granting defendant’s motion for summary judgment) (“U.S. Cellular II”).

For the reasons set forth below, we reverse the district court’s judgment in U.S.

Cellular I and affirm the judgment in U.S. Cellular II.

I. Background

A. Overview of Broken Arrow’s Permit Application Process

In Broken Arrow, Oklahoma, the City’s power to grant permits for the

construction of cellular transmission towers is defined generally by the Broken

Arrow Zoning Ordinance. Article VIII, section 18 of the Zoning Ordinance sets

forth specific requirements. Under Article VIII, section 18.6, “[n]o person or

entity shall hereafter construct, own, or operate any communication tower in

excess of fifty (50) feet in height above the mean elevation of the ground of the

lot or parcel on which it is built, unless said person has obtained a permit to

construct from the City of Broken Arrow.” With limited exceptions not

applicable here, 1 the ultimate authority to issue specific use permits, including

permits for the construction of “telecommunications towers,” resides in the City

1
Under the Zoning Ordinance, the Planning Commission may
“administratively” approve certain specific use permits. See id., art. VIII, §§
18.3, 18.10.

-3-
Council. See generally Broken Arrow Zoning Ord., art. VIII, § 18.

In general, the permitting process proceeds as follows. Once the Broken

Arrow Planning Commission (the “Planning Commission”) receives a permit

application, a Planning Commission staff member, usually the Planning Director,

prepares an “Agenda Packet,” which sets forth the background of the permit

request, the extent of the applicant’s conformance with the Zoning Ordinance and

other applicable law, and the staff member’s recommended course of action. The

preparer of the Agenda Packet submits this report to all members of the Planning

Commission. After notice and public hearing, the Planning Commission forwards

its recommendation to the City Council for further consideration and public

comment. The City Council then holds a final hearing and decides whether to

accept or reject the Planning Commission’s recommendation. 2 If the City Council

decides to deny an application, that decision “shall be conveyed to the applicant

in writing, together with the summary of the evidence which supports a denial of

the application.” Id., art. VIII, § 18.16.

B. Requirements Under the Zoning Ordinance

As part of the permitting process, an applicant must provide the City

Council with certain required information, set forth in sections 18.7 and

2
The City Council reviews the Planning Commission’s denial of an
application only if the applicant files a written request within 15 days.

-4-
18.11(A)-(F) of the Zoning Ordinance. With respect to the determination of

whether to issue a specific use permit, section 18.12 provides:

The City Council shall consider the following factors . . .

(a) height of the proposed tower;
(b) proximity of the tower to residential structures and adjacent
residential lot boundaries;
(c) nature of uses on adjacent and nearby properties;
(d) surrounding topography;
(e) surrounding tree coverage and foliage;
(f) design of the tower, with particular reference to those design
characteristics which have the effect of reducing or eliminating
visual obtrusiveness;
(g) proposed routes of ingress and egress;
(h) whether or not the tower is constructed so as to be available
for co-location in the future; and
(i) whether or not there are suitable, existing towers or other
supporting structures capable of meeting the technological
needs of the applicant.

Id., art. VIII, § 18.12. Section 18.12 also states that “the City Council may

modify one or more of these criteria if, in the particular circumstances of

the application, [the] Council concludes that the goals and intent of [the

Zoning Ordinance] are better served by such modification.” Id. Section

18.13 further provides that “[n]o new tower should be permitted by the City

Council, unless the applicant demonstrates to the City Council’s reasonable

satisfaction that no existing tower or other structure can accommodate the

-5-
applicant’s proposed antenna.” 3 Id., § 18.13. Finally, the Zoning

Ordinance sets forth the City’s general policy regarding tower construction

in certain zoning districts, under which “towers are normally discouraged in

A-1 and RE [agricultural and residential] zoning districts, and applicants

shall be required to establish the elements of the application by clear and

convincing evidence.” Id., art. VIII, § 18.11(G).

C. U.S. Cellular’s Permit Applications

On February 21, 2001, U.S. Cellular filed two applications for

specific use permits with the Planning Commission, seeking to construct

the following: (1) a 120-foot “monopole” cellular transmission tower on a

tract of land located at 10525 South 193rd East Avenue in Broken Arrow,

Oklahoma (the “East Avenue property”) (“SP-149”); and (2) a 240-foot,

self-supporting cellular transmission tower on a ten-acre tract of land

owned by the Forest Ridge Baptist Church, located at 8300 South Oneta

Road in Broken Arrow, Oklahoma (the “South Oneta Road property”) (“SP-

150”).

In addition to SP-149 and SP-150, U.S. Cellular had filed numerous

other permit applications with the City to construct cellular towers. For

Section 18.13 then lists five factors the City Council may consider in
3

determining the unavailability of alternate sites.

-6-
example, on June 18, 2001, the City Council approved U.S. Cellular’s

application to construct a 100-foot monopole tower on the west side of

Queens Circle. In fact, according to Doyle Groat, a U.S. Cellular engineer,

as of July 16, 2001, U.S. Cellular had completed eight projects within the

City. At least three of these projects involved new tower construction; the

remaining five apparently involved co-location.

1. SP-149

In its first application, SP-149, U.S. Cellular proposed to construct a

120-foot monopole tower on the East Avenue property, a six-acre tract the

City annexed on September 18, 2000. The City assigned the East Avenue

property the zoning classification “AR-1,” a transitional-zoning category

denoting single-family residential use; at the time of U.S. Cellular’s

application, however, there were no residences on the property. 4 The land

surrounding the East Avenue property was zoned as follows: to the north,

AR-1, single-family residential; to the south, A-1, agricultural with one

single-family residence; to the east, AR-1, single-family residential; and to

the west, AG, agricultural.

As part of their application, U.S. Cellular submitted two maps

4
In fact, the closest residence to the proposed tower site was located 300
feet to the south, on land zoned for agricultural use.

-7-
prepared by radio frequency engineers. The first map showed U.S.

Cellular’s existing coverage within the City. The second illustrated the

additional coverage U.S. Cellular would be able to provide following the

completion of the proposed SP-149 tower. U.S. Cellular also attached the

affidavit of Keith Sach, an Associate Radio Frequency Engineer with U.S.

Cellular. In his affidavit, Mr. Sach stated, inter alia, that “[t]here are no

existing towers or permits for towers located within [one-half] mile of the

[SP-149] site.” Sach Affid. ¶ 3. Finally, U.S. Cellular’s application also

stated that “[n]o existing tower can accommodate the proposed antenna.”

In support of this statement, U.S. Cellular referred to the attached coverage

maps and Mr. Sach’s affidavit.

2. SP-150

In its SP-150 application, U.S. Cellular proposed to construct a 240-

foot tower on the South Oneta Road property, a ten-acre tract of land in the

southeast part of the City owned by the Forest Ridge Baptist Church. At

the time of U.S. Cellular’s application, the South Oneta Road property was

zoned “AA-1,” a transitional-zoning category indicating agricultural use.

Although on February 19, 2001, the City Council approved a change in

zoning for the South Oneta Road property, pursuant to which the property

would be zoned “A-1,” a conventional-zoning category indicating

-8-
agricultural use, the City Council had conditioned its approval on the site

being platted. At the time of the events in question, the Forest Ridge

Baptist Church had not yet platted the South Oneta Road property. 5 The

land bordering the South Oneta Road property was zoned as follows: to the

north and west, R-1, single-family residential; to the east, undeveloped with

one single-family residence; and to the south, A-1, agricultural, with one

single-family residence.

D. The City’s Denials

1. SP-149

a. The Agenda Packet

Prior to the Planning Commission’s April 26, 2001, meeting, Farhad

Daroga, the City’s Planning Director, prepared an Agenda Packet setting

forth the background information concerning SP-149. In particular,

Planning Director Daroga discussed the degree to which SP-149 conformed

with the Zoning Ordinance. In his report, Planning Director Daroga made

5
Apparently, on May 7, 2001, the City Council had reached an agreement
with the Forest Ridge Baptist Church, owners of the South Oneta Road property,
“to defer platting until the next expansion project is considered.” At the June 18,
2001, City Council meeting, the Church and some City Council members
disagreed as to whether SP-150 constituted an “expansion project,” which would
revoke the Church’s platting deferral. In his June 18, 2001, report on SP-149, the
City Manger noted that “[p]latting or waiving . . . the platting requirement is the
prerogative of the City Council.”

-9-
the following observations: (1) SP-149 did not conform to the Zoning

Ordinance’s setback requirements; (2) SP-149’s proposed site was zoned

AR-1, a transitional-zoning category, and under applicable law no new use

could commence on the tract until appropriate conventional zoning was

obtained and the site had been platted; 6 (3) an alternative suitable site

existed for U.S. Cellular’s proposed 120-foot monopole tower, located one-

half mile from SP-149’s proposed site on the east side of County Line

Road; and (4) SP-149 did not include a landscape plan, as required under

the Zoning Ordinance. Based on these findings, Planning Director Daroga

recommended that the Planning Commission deny SP-149. All members of

the Planning Commission received a copy of the Agenda Packet.

b. The Planning Commission Recommends that the

City Council Deny SP-149.

On April 26, 2001, 7 the Planning Commission considered SP-149. At

the beginning of the hearing, Planning Director Daroga addressed the

Planning Commission and discussed the findings contained in the Agenda

Packet he had prepared. Planning Director Daroga recommended denying

6
The Agenda Packet noted that the Planning Commission had denied SP-
144 for the same reason.
7
The hearings for both SP-149 and SP-150 were originally scheduled for
March 22, 2001, but the City Council tabled both hearings at the request of U.S.
Cellular.

-10-
SP-149, stating that “the application does not meet the minimum setback

requirements, which is 120 percent, and the property is zoned R-1, the

zoning code calls for discouraging cell towers in residential-zoned

districts.” 8 Later in the hearing, Planning Director Daroga noted that there

were several alternative sites within one-half mile of the proposed site and

an existing tower just over one-half mile away suitable for co-location. He

presented no evidence relating to the adequacy of these sites.

Following Planning Director Daroga’s opening remarks, Kevin

Coutant, an attorney for U.S. Cellular, addressed the Planning Commission.

Mr. Coutant stated that SP-149’s “primary objective” was to enable U.S.

Cellular to provide coverage on the Creek Turnpike, in anticipation of

increased demand. During his presentation, Mr. Coutant attempted to

address several of the concerns raised in the Agenda Packet and in

Commission members’ comments, including questions relating to: (1) the

Zoning Ordinance’s setback requirements; (2) alternative sites; (3) the

Zoning Ordinance’s prohibition against new uses in transitional-zoning

areas; and (4) the City’s general policy disfavoring the construction of

cellular towers within single-family residential areas.

Planning Director Daroga had not raised this second concern in the
8

Agenda Packet.

-11-
 Concerning the setback issue, Mr. Coutant argued that, under a fair

reading of section 18.14, SP-149 complied with the Zoning Ordinance’s

setback requirement because the property along the south border of the East

Avenue property was zoned for agricultural use rather than residential use. 9

With respect to the prohibition against new uses on transitionally-

zoned property, Mr. Coutant requested that the Planning Commission

approve SP-149 “subject to subsequent rezoning.” Mr. Coutant suggested

that it made little economic sense for U.S. Cellular to incur the costs

associated with obtaining the zoning change before the City approved SP-

149.

Finally, Mr. Coutant asked Doyle Groat and Keith Sachs, two U.S.

Cellular engineers, to respond to the concerns regarding alternative sites.

In addition to Mr. Groat’s general comments, Mr. Coutant referred the

Commission to the coverage map, which U.S. Cellular had attached to its

9
Planning Director Daroga based his opinion to the contrary on the fact
that, even though it was zoned for agricultural use, there was a single-family
residence on the property.

During the hearing, however, Planning Commission members expressed a
different concern. Some members inquired about the limitations approval of SP-
149 might place on the City’s ability to later rezone the property south of the
proposed site for single-family residential use, in light of section 18.14’s setback
requirement. In other words, the members’ concern was that, by approving SP-
149, it would create a zone of land (with a radius equal to 120 percent of the
tower’s height) that could not be developed for single-family residential use.

-12-
SP-149 application. Mr. Coutant explained that, in addition to providing

coverage on the turnpike, which he had previously characterized as SP-

149’s “primary objective,” U.S. Cellular’s decision to locate SP-149 on the

East Avenue property was based on the fact that this location would enable

it to achieve a “multiplicity of objectives,” including “in-building

penetration” at Northeastern State University’s Broken Arrow (“NSU-BA”)

campus. 10 When Planning Director Daroga inquired whether U.S. Cellular

had considered co-locating on the existing tower close to the NSU-BA

campus, Mr. Sach responded: “Yes – well, yes, we’ve considered that. . . .

[I]t won’t give us the type of service coverage we’re – we’re wanting not

only for the [NSU-BA] campus but also for in-vehicle coverage along the

turnpike section we’ll be going in.” U.S. Cellular offered no evidence to

substantiate Mr. Sach’s statement.

At the conclusion of the hearing, the Planning Commission

unanimously voted to deny SP-149. The City Manager, Michael D.

Kadlecik, then forwarded the Planning Commission’s recommendation to

the Mayor and the City Council in a report dated June 18, 2001. 11

10
In his remarks during the Planning Commission’s later hearing on SP-
150, Mr. Coutant stated: “The objective here is just a little bit different than –
than what we discussed at the [SP-149] site. This is truly a coverage site.”
11
This report was nearly identical to the Planning Commission’s April 26,
(continued...)

-13-
 c. The City Council Adopts the Planning

Commission’s Recommendation to Deny SP-149.

On June 18, 2001, the City Council held its hearing on SP-149.

During the hearing, City Council members expressed three primary

concerns: (1) SP-149’s noncompliance with the Zoning Ordinance’s

setback requirements; (2) SP-149’s impediment to residential development

on and around the East Avenue property, in light of the Zoning Ordinance’s

setback requirements; and (3) the existence of alternative locations.

At the hearing, Mr. Coutant again appeared on behalf of U.S.

Cellular. In addressing the City Council, Mr. Coutant discussed the

concerns voiced at the earlier hearing before the Planning Commission. On

the setback question, U.S. Cellular agreed to relocate the position of the

tower on the proposed site, in order to conform with the Planning

Commission’s interpretation of section 18.14’s setback requirement. 12

Mr. Coutant also responded to the Planning Commission’s concerns

about impeding residential development on the East Avenue property and

(...continued)
11

2001, Agenda Packet.
12
Mr. Coutant abandoned his earlier position, in which he had disagreed
with the City Council’s interpretation of the Zoning Ordinance’s setback
requirements, specifically, the meaning of “adjacent residential lot boundaries.”
See Broken Arrow Zoning Ord., art. VIII, § 18.14.

-14-
the surrounding land. Initially, Mr. Coutant noted that “our landlord, the

owner of the property, is comfortable with the consequences of the impact

of [the] tower on the entirety of that radius . . . and his analysis suggest that

this – this is a good utilization of his property.” Mr. Coutant also disagreed

with the Planning Commission’s interpretation of section 18.14’s setback

requirement. Under Mr. Coutant’s interpretation, the Zoning Ordinance did

not prohibit residential construction within a 120-percent radius of a

telecommunications tower; rather, it prohibited only tower construction

within a 120-percent radius of residential construction. In other words,

according to Mr. Coutant, section 18.14 placed “a burden on

[telecommunications providers] . . . [but did] not prevent residential

development around the tower.”

Mr. Coutant next addressed the Zoning Ordinance’s prohibition

against new uses for transitionally-zoned property and again requested that

the City Council conditionally approve SP-149, subject to U.S. Cellular

securing the necessary conventional zoning and completing the platting.

Specifically, Mr. Coutant stated, “we understand and nod to the fact that

your code does contemplate rezoning, but would ask for approval subject to

that condition.”

Finally, with respect to the availability of alternative sites, Mr.

-15-
Coutant again referred the City Council to the coverage maps attached to

U.S. Cellular’s SP-149 application while attempting to address City

Council member’s specific concerns.

Following this hearing, the City Council adopted the Planning

Commission’s recommendation and denied SP-149. On July 17, 2001,

Planning Director Daroga, on behalf of the City, sent written notification of

the City Council’s decision to U.S. Cellular, as required under article VIII,

section 18.16 of the Zoning Ordinance. The letter set forth the following

four reasons 13 supporting the City Council’s denial: (1) U.S. Cellular’s

proposed tower did not meet the Zoning Ordinance’s setback requirements;

(2) U.S. Cellular’s proposed site was zoned AR-1, a transitional-zoning

category, and under applicable law no new use may commence on land until

appropriate conventional zoning is obtained; (3) U.S. Cellular’s proposed

site was zoned AR-1, a designation similar to the R-1 single-family

residential designation, and applicable law prohibited telecommunications

towers with heights in excess of 50 feet on any property actually used for a

single-family residential purpose; and (4) other suitable sites existed for

13
The letter stated that “[a]s discussed during the City Council and
Planning Commission hearings, this application was denied for several reasons,
including, but not limited to the [reasons set forth in the letter].” (emphasis
added).

-16-
U.S. Cellular’s proposed telecommunications tower, specifically, an

existing tower one-half mile north of U.S. Cellular’s proposed site.

Planning Director Daroga enclosed the following supporting materials with

the letter: (1) the Planning Commission’s Agenda Packets, dated March 22,

2001, and April 26, 2001; (2) the City Manager’s report to the City

Council, dated June 18, 2001; (3) the minutes of the Planning

Commission’s hearings on March 22, 2001, and April 26, 2001; and (4) the

minutes of the City Council’s hearing on June 18, 2001. The letter

concluded with the following: “If you wish to pursue a site for a

telecommunications tower in the vicinity discussed, we would be glad to

work with you and your clients and suggest additional sites within this

area.”

2. SP-150

a. The Agenda Packet

Planning Director Daroga also prepared the Agenda Packet for SP-

150. In his report, Planning Director Daroga recommended denying SP-150

for the following reasons: (1) SP-150’s proposed site was zoned AA-1, a

transitional-zoning category, and under applicable law no new use may

commence on land prior to the applicant obtaining appropriate conventional

-17-
zoning and the completion of platting and site-plan review; 14 (2) the City

Council had approved SP-150’s proposed site for A-1 zoning, towers are

normally discouraged in A-1 zoning districts, and U.S. Cellular had not

presented “clear and convincing evidence” supporting its application, as

required under the Zoning Ordinance; (3) at least two alternative suitable

sites existed for U.S. Cellular’s proposed 240-foot tower, one located one-

half mile south of the South Oneta Road property and another located one

and one-half miles southwest; and (4) SP-150 did not include a landscape

plan, as required under the Zoning Ordinance. The report also noted that

the Cambridge Estates subdivision bordered SP-150’s proposed site to the

north and west and stated that “[a] 240-foot high tower adjacent to single-

family homes is not a desirable land use.” All members of the Planning

Commission received a copy of the Agenda Packet prior to the hearing on

SP-150.

b. The Planning Commission Recommends that the

City Council Deny SP-150.

On April 26, 2001, the Planning Commission held its hearing on SP-

14
The report indicated that the Planning Commission had received a site
plan for the South Oneta Road property, but also noted that “the property has not
been platted and all applicable zoning requirements have not been completed.”
Based on these facts, Planning Director Daroga described SP-150 as “premature.”

-18-
150. Planning Director Daroga presented a brief overview of SP-150 and

gave his recommendation to the Planning Commission. Mr. Coutant again

appeared on behalf of U.S. Cellular.

Mr. Coutant first addressed the two alternative locations noted in the

Agenda Packet. According to Mr. Coutant, neither site “would . . . give

nearly the coverage that would support the location of a new facility” or

“give the best benefit to the most citizens of the community.” Mr. Coutant

offered no evidence in support of this conclusion. Nor did the supporting

materials for U.S. Cellular’s SP-150 application address the technological

or financial feasibility of either of the alternatives mentioned in the Agenda

Packet.

Next, Mr. Coutant stated that the “transitional” zoning issue raised in

the Agenda Packet was moot under his reading of the Zoning Ordinance,

since the City Council had approved the South Oneta Road property for

“conventional” zoning. Mr. Coutant went on to state, however, that

regardless, “[U.S. Cellular] would certainly entertain and – and be pleased

to have an approval that had conditions that – that zoning had to be

changed.” 15

Mr. Coutant made a similar offer regarding the platting for the South
15

Oneta Road property.

-19-
 With respect to the Zoning Ordinance’s policy statement disfavoring

tower construction in A-1 areas, Mr. Coutant conceded, “[n]o, that is

exactly what your code says, and no, I – I can’t disagree with that.” Mr.

Coutant also stated:

I would just suggest that because of the matters that have been
presented and – and the need for service and the fact that this
in one tower takes care of quite a broad area for the
foreseeable future without imposing, in this sense, needless
construction of multiple towers to provide the same range of
service is – is a application that overcomes the [clear and
convincing evidence] burden that you suggest.

Following Mr. Coutant’s statements, six Broken Arrow residents

spoke in opposition of SP-150, voicing concerns related to the tower’s

aesthetic impact. 16 In addition, at least two residents wrote letters to the

Planning Commission strenuously objecting to SP-150. One resident spoke

in favor of SP-150.

At the conclusion of the hearing, Planning Director Daroga stated:

Staff recommends that SP-150 be denied due to improper
zoning and the zoning ordinance discouraging towers in the A-
1 district. A 180-foot tower[ 17] adjacent to a single-family
residential neighborhood and their recreational area which
comprises of the recreational amenities back there is an

16
Although the Planning Commission’s meeting minutes indicate that 12 to
14 protesters were at the meeting, the transcript of the hearing indicates that only
six actually spoke out in opposition.
17
Before the Planning Commission, Mr. Coutant amended SP-150’s
proposed height from 240 to 180 feet.

-20-
 inappropriate use – land use in a – this site. This site is
surrounded on three sides – or four by residential usage.

The Planning Commission then voted unanimously to recommend that the

City Council deny SP-150. The City Manager forwarded the Planning

Commission’s recommendation to the Mayor and the City Council, in a

report dated June 18, 2001. 18

c. The City Council Adopts the Planning

Commission’s Recommendation to Deny SP-150.

On June 18, 2001, the City Council held its hearing on SP-150.

During the hearing, Council members posed various questions to Mr.

Coutant, who again appeared on behalf of U.S. Cellular.

Vice-Mayor Tony Petrik asked Mr. Coutant whether U.S. Cellular

had prepared maps indicating the coverage a 100-foot tower would provide.

Vice-Mayor Petrik presented other City Council members with photographs

of a 100-foot “camouflaged” tower on church grounds in Sapulpa,

Oklahoma. 19 Mr. Coutant indicated that U.S. Cellular had not prepared any

such maps. In fact, Mr. Coutant stated that U.S. Cellular would not

The City Manager’s report was nearly identical to the Planning
18

Commission’s April 26, 2001, Agenda Packet.
19
The Forest Ridge Baptist Church’s pastor, Reverend Gray, reacted
positively to Vice-Mayor Petrik’s suggestion, noting that “if we could satisfy U.S.
Cellular and satisfy – it would certainly satisfy the church.”

-21-
consider a 100-foot tower. 20

Several protesters appeared at the June 18, 2001, hearing. One

citizen, Shelly Schaede, presented a petition disapproving of SP-150 signed

by “about 70” residents of the neighborhood bordering the South Oneta

Road property.

As the hearing proceeded, City Council members expressed increased

interest in the possibility of a 100-foot camouflaged tower. Councilman

Wade McCaleb suggested postponing the Council’s vote on SP-150, so that

U.S. Cellular could consider such a modification and provide the City with

a coverage map for a 100-foot tower.

Mr. Coutant initially dismissed the suggestion, stating: “Gentlemen,

excuse me. I . . . appreciate the – the spirit of compromise that – that is

suggested by the motion. I mean, we . . . brought it down to 180 feet

because that’s . . . the lowest that – that accommodates the need.” Later in

the hearing, however, Mr. Coutant indicated that U.S. Cellular would

consider a 100-foot camouflage tower. The City Council then concluded

the meeting and agreed to hold another hearing on July 16, 2001.

On July 16, 2001, the City Council held its second hearing on SP-

20
Specifically, Mr. Coutant stated: “We would not build a 100-foot tower.
It – it – it would serve no purpose.”

-22-
150. At the outset, Planning Director Daroga noted that U.S. Cellular had

submitted no additional information in response to the Council’s June 18,

2001, request for additional information on the possibility of a 100-foot

camouflaged tower.

Ms. Kelly Knopp Balman appeared on behalf of U.S. Cellular.

Initially, Ms. Balman addressed the City Council’s earlier suggestion of a

100-foot camouflaged tower. Ms. Balman stated: “U.S. Cellular has

discussed a 100-foot tower with their engineers and with the business

personnel with respect to the economic aspects as well as the engineering

needs of the cell network, and we have determined that the 100-foot . . .

tower will not meet our needs.” Ms. Balman submitted no evidence in

support of this conclusion.

Mr. Groat, a U.S. Cellular engineer, also appeared on behalf of U.S.

Cellular, to discuss the technical aspects of SP-150. Although Mr. Groat

provided some explanation of U.S. Cellular’s “siting” process, he offered

no reports or other evidence to support U.S. Cellular’s proposed site. Thus,

U.S. Cellular’s initial application packet and its attached coverage maps

were the sole materials U.S. Cellular submitted to the City Council in

support of its application.

At the conclusion of the July 16, 2001, hearing, the City Council

-23-
voted unanimously to deny SP-150. On July 20, 2001, Planning Director

Daroga sent a letter to U.S. Cellular on behalf of the City, confirming the

City Council’s denial, citing the following reasons: (1) U.S. Cellular’s

proposed site was zoned AA-1, a transitional-zoning category, and under

applicable law no new use may commence on land until appropriate

conventional zoning is obtained; (2) U.S. Cellular’s proposed site was

conditionally approved for A-1 zoning, and applicable law discourages

tower construction in such areas and requires clear and convincing evidence

of the applicant’s need to construct within such area; (3) other suitable sites

existed for U.S. Cellular’s proposed telecommunications tower, including

towers available for co-location; and (4) U.S. Cellular provided no

materials in response to the City Council’s request that U.S. Cellular

consider a 100-foot camouflaged tower for the site, despite the fact that the

City Council provided U.S. Cellular a month to do so.

The letter indicated that the City Council reached its conclusion

based on “[U.S. Cellular’s] submittals, the Planning Commission

recommendation, findings by the City Council, and the fact that all possible

alternatives and the Zoning Ordinance were not followed.” Planning

Director Daroga enclosed the following supporting materials with the letter:

(1) the Planning Commission’s Agenda Packet, dated April 26, 2001; (2)

-24-
the City Manager’s reports to the City Council, dated June 18, 2001, and

July 16, 2001; (3) the minutes of the Planning Commission’s hearing on

April 26, 2001; and (4) the minutes of the City Council’s June 18, 2001,

hearing. The letter concluded with the following: “If you wish to pursue a

site for a telecommunications tower in the vicinity discussed, we would be

glad to work with you and your clients and suggest additional sites within

this area.”

II. Discussion

A. Overview of Applicable Law

Except for the narrow limitations set forth in 47 U.S.C. §

332(c)(7)(B), “[t]he Telecommunications Act expressly preserves local

zoning authority over the placement, construction and modification of

personal wireless service facilities.” Cellular Telephone Co. v. Zoning Bd.

of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 68 (3d Cir.

1999).

Section 332(c)(7)(B) places six restrictions on the authority of state

and local governments to regulate the placement, construction, and

modification of personal wireless service facilities. Three of these

restrictions are procedural. First, “[a]ny decision by a State or local

government or instrumentality thereof to deny a request to place, construct,

-25-
or modify personal wireless service facilities shall be in writing.” 47

U.S.C. § 332(c)(7)(B)(iii). Second, such denials must be “supported by

substantial evidence contained in a written record.” Id. Third, local

authorities must “act on any request for authorization to place, construct, or

modify personal wireless service facilities within a reasonable period of

time after the request is duly filed with such government or instrumentality,

taking into account the nature and scope of such request.” Id. §

332(c)(7)(B)(ii).

The remaining three requirements limiting state and local authority

over the placement, construction, and modification of personal wireless

service facilities are substantive. First, local authorities “ shall not

unreasonably discriminate among providers of functionally equivalent

services.” Id. § 332(c)(7)(B)(i)(I). Second, local governments “shall not

prohibit or have the effect of prohibiting the provision of personal wireless

services.” Id. § 332(c)(7)(B)(i)(II). Finally, Congress provided that “[n]o

State or local government or instrumentality thereof may regulate the

placement, construction, and modification of personal wireless service

facilities on the basis of the environmental effects of radio frequency

emissions to the extent that such facilities comply with the Commission’s

regulations concerning such emissions.” Id. § 332(c)(7)(B)(iv).

-26-
 In the cases presently before us, our inquiry pertains only to the

second of the procedural limitations on state and local authority: whether

the City Council’s denials of SP-149 and SP-150 were supported by

substantial evidence. For the reasons set forth below, we conclude that

they were.

B. Whether the City’s Denials of SP-149 and SP-150 Were

Supported by “Substantial Evidence.”

1. The Substantial Evidence Standard

Under 47 U.S.C. § 332(c)(7)(B)(iii), “[a]ny 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.”

Section 332(c)(7)(B)(iii)’s substantial-evidence requirement “does not

‘affect or encroach upon the substantive standards to be applied under

established principles of state and local law.’” Cellular Telephone Co. v.

Town of Oyster Bay , 166 F.3d 490, 494 (2d Cir. 1999) (citation omitted).

“‘Substantial evidence’ review under the [Telecommunications Act] does

not create a substantive federal limitation upon local land use regulatory

power, but is instead ‘centrally directed to those rulings that the Board is

expected to make under state law and local ordinance in deciding on

-27-
variances, special exceptions and the like.’” Southwestern Bell Mobile

Systems, Inc. v. Todd , 244 F.3d 51, 58 (1st Cir. 2001) (citation omitted).

Accordingly, we look to the requirements set forth in the local zoning

ordinance to ascertain the substantive criteria to be applied. See Town of

Amherst, N.H. v. Omnipoint Communications Enterprises, Inc. , 173 F.3d 9,

14 (1st Cir. 1999). In sum, “[t]he reviewing court’s task is to determine

whether the [local authority’s] decision, as guided by local law, is

supported by substantial evidence.” Borough of Ho-Ho-Kus , 197 F.3d at

72.

We begin by noting that judicial review under the substantial-

evidence standard is quite narrow. Ready Mixed Concrete Co. v. N.L.R.B. ,

81 F.3d 1546, 1551 (10th Cir. 1996); American Trucking Ass’ns, Inc. v.

I.C.C. , 703 F.2d 459, 462 (10th Cir. 1983) (“It is axiomatic that the scope

of review by an appellate court of a Commission decision is a narrow

one.”). That said, “[our] review, though highly deferential, ‘is not a rubber

stamp.’” Todd , 244 F.3d at 58-59 (quoting Penobscot Air Servs., Ltd. v.

Fed. Aviation Admin. , 164 F.3d 713, 718 (1st Cir. 1999)). “Substantial

evidence is such evidence that a reasonable mind might accept as adequate

to support the conclusion reached by the [decisionmaker]. Substantial

evidence requires more than a scintilla but less than a preponderance.”

-28-
Sandoval v. Aetna Life & Casualty Ins. Co. , 967 F.2d 377, 382 (10th Cir.

1992) (internal quotation marks omitted). “The possibility of drawing two

inconsistent conclusions from the evidence does not prevent an

administrative agency’s findings from being supported by substantial

evidence.” Curtis, Inc. v. I.C.C. , 662 F.2d 680, 685 (10th Cir. 1981).

2. The City’s Reasons for Denying SP-149 and SP-150

Prior to conducting our substantial-evidence review, we must address

the parties’ dispute with respect to the reasons undergirding the City

Council’s two denials. Limiting its consideration to the transcripts of the

City Council’s voice votes, U.S. Cellular argues that the City Council

denied SP-149 solely on the basis of two findings: (1) SP-149’s failure to

comply with the Zoning Ordinance’s 120-percent setback requirement; and

(2) the availability of alternative sites. Similarly, with respect to SP-150,

U.S. Cellular argues that City Council premised its denial on (1) the

availability of alternative sites, and (2) the existence of towers suitable for

co-location.

The City, on the other hand, argues that we should look to its written

denials of SP-149 and SP-150, sent to U.S. Cellular on July 17, 2001, and

July 20, 2001, respectively, both of which set forth numerous reasons not

contained in the voice-vote portions of the City Council meeting

-29-
transcripts.

In advancing its argument, U.S. Cellular notes that City Council

members, during the voice votes on SP-149 and SP-150, mentioned only the

pairs of reasons noted above. According to U.S. Cellular, these reasons

alone constitute the City Council’s “true” bases for the denials. We reject

this argument for several reasons.

First, all of the reasons set forth in the City’s letters of July 17,

2001, 21 and July 20, 2001, were aired during the extensive proceedings the

City conducted on SP-149 and SP-150, which included consideration by the

Planning Director, the Planning Commission, and the City Council. 22
In

21
One caveat, although it does not change the result in this case. It does
not appear that the City had, prior to its July 17, 2001, letter, specifically
discussed article VIII, section 18.4 of the Zoning Ordinance, which prohibits the
construction of telecommunications towers with heights in excess of 50 feet on
any property actually used for single-family residential purposes. That said, both
the Planning Commission and the City Council discussed at length the fact that
the East Avenue property was earmarked for single-family residential use and the
impediment SP-149 might place on residential development on the East Avenue
property and the surrounding area.
22
As we discussed earlier, the City set forth four reasons for its denial of
SP-149: (1) U.S. Cellular’s proposed site was zoned AR-1, a transitional-zoning
category, and under applicable law, no new use may commence on land until
appropriate conventional zoning is obtained, see Broken Arrow Zoning Ord. art.
VIII, § 15.5; (2) other suitable sites existed for U.S. Cellular’s proposed
telecommunications tower, specifically, an existing tower one-half mile north of
U.S. Cellular’s proposed site, see id., art. VIII, § 18.13; (3) U.S. Cellular’s
proposed site was earmarked for single-family residential use, and applicable law
prohibited telecommunications towers with heights in excess of 50 feet on any
(continued...)

-30-
other words, the City did not create the reasons set forth in its denial letters

post hoc . In fact, the reasons set forth in the City’s letters were the same,

or substantially similar to, the reasons set forth in the Agenda Packets,

which Planning Director Daroga created at the very beginning of the

process, prior to the Planning Commission’s initial consideration of SP-149

and SP-150. All City Council members received copies of the respective

Agenda Packets prior to the hearings on SP-149 and SP-150. 23
Further, the

City noted in its July 20, 2001, letter that its denial was based, in part, on

22
(...continued)
property used for a single-family residential purpose, see id., art. VIII, § 18.4; and
(4) U.S. Cellular’s proposed tower did not meet the Zoning Ordinance’s setback
requirements, see id., art. VIII, § 18.14.

As for SP-150, we noted earlier that the City Council denied the request for
four reasons. First, SP-150’s proposed site was zoned AA-1 at the time of U.S.
Cellular’s application, which is a transitional-zoning category, and under
applicable law, no new use may commence on the land until appropriate
conventional zoning is obtained. See id., art. VIII, § 15.5. Second, U.S.
Cellular’s proposed site was conditionally approved for A-1 zoning, and
applicable law discouraged tower construction in such areas and required clear
and convincing evidence of the applicant’s need to construct within such an area.
See id., art. VIII, § 18.11(G). Third, other suitable sites were available to U.S.
Cellular for its proposed telecommunications tower. See id., art. VIII, § 18.13.
Finally, U.S. Cellular provided no materials in response to the City Council’s
request that U.S. Cellular consider a 100-foot camouflaged tower for the SP-150
site, despite the fact that the City Council provided U.S. Cellular a month to
comply with this request.
23
On June 18, 2001, the City Manager forwarded reports on SP-149 and
SP-150, which were substantially similar to the Agenda Packets for the two
permit applications.

-31-
“the Planning Commission’s recommendation,” which in turn was based on

Planning Director Daroga’s findings set forth in the Agenda Packet.

Second, the Zoning Ordinance specifically provides that “[a]ny

decision[] to deny an application for the placement, construction,

modification of towers for cellular or personal communication service, or

specialized radio mobile service shall be conveyed to the applicant in

writing.” Broken Arrow Zoning Ord. art. VIII, § 18.16. Thus, local law

identifies the written decision as the proper source for the reasons

supporting the denial, see Borough of Ho-Ho-Kus , 197 F.3d at 72, and this

court will not assume that the City acted in contravention of section 18.16’s

self-imposed procedural requirement.

Similarly, given the “writing” requirement contained in the

Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii), logic dictates that

we look to the required writing to determine the basis for the City

Council’s decision. As the First Circuit suggested in Todd , the purpose of

section 332(c)(7)(B)(iii)’s “writing” requirement is to facilitate meaningful

judicial review. 244 F.3d at 60 (“[The] written denial must contain a

sufficient explanation of the reasons for the permit denial to allow a

reviewing court to evaluate the evidence in the record supporting those

reasons.”).

-32-
 Third, according to U.S. Cellular, “[i]t would be patently unfair to

speculate that the members of the City Council who voted upon the specific

motion, as seconded, would agree to that which was not expressly voted

upon.” We agree. But it would be similarly unfair to assume, as U.S.

Cellular invites us to, that each City Council member who voted to deny

U.S. Cellular’s application necessarily adopted only those reasons stated by

the Council member who initiated the motion at the end of lengthy written

and oral consideration. Fortunately, the City’s denial letters, which set

forth in writing the City’s reasons for denial, remove the need for such

speculation.

Based on the above, we reject U.S. Cellular’s argument that we

should remove from the scope of our substantial-evidence review the

reasons set forth in the City’s denial letters of July 17, 2001, and July 20,

2001 and record evidence supporting those reasons.

3. SP-149

U.S. Cellular raises two principal points in contending that the City

Council’s denial of SP-149 cannot withstand substantial-evidence review.

First, U.S. Cellular argues that the City Council failed to apply the

standards and criteria set forth in the Zoning Ordinance. Second, U.S.

-33-
Cellular contends that the reasons 24
set forth in the City Council’s July 17,

2001, letter were not supported by substantial evidence. We consider each

contention in turn.

First, the transcripts of the City Council’s June 18, 2001, hearing

belie U.S. Cellular’s assertion that “the City Council did not review the

Section 18.12 factors” in denying SP-149. In accordance with section

18.12’s mandate, City Council members considered the following: (1) the

“proximity of the tower to residential structures and adjacent residential lot

boundaries” and the “nature of uses on adjacent and nearby properties,” 25

Broken Arrow Zoning Ord. art. VIII, § 18.12(b)-(c); (2) the height and

design of the proposed tower, with particular reference to those design

characteristics which have the effect of reducing or eliminating visual

obtrusiveness, 26
id. § 18.12(a), (f); and (3) “whether . . . there are suitable,

existing towers or other supporting structures capable of meeting the

technological needs of the applicant,” 27
id. § 18.12(i). Further, both the

24
For a list of the City’s four reasons, see note 22, supra.
25
Transcript of June 18, 2001, Broken Arrow City Council Meeting on SP-
149, at 14-15, 22, 24-25.
26
Transcript of June 18, 2001, Broken Arrow City Council Meeting on SP-
149, at 16.
27
Transcript of June 18, 2001, Broken Arrow City Council Meeting on SP-
(continued...)

-34-
Planning Director and the Planning Commission considered SP-149 under

the factors contained in section 18.12.

Second, we must consider whether substantial evidence supported the

reasons set forth in the City Council’s July 17, 2001, letter. The City

Council based its denial, in part, on the fact that U.S. Cellular’s proposed

site was zoned AR-1, a transitional-zoning category, and applicable law

provided that “[n]o new use may be commenced on land, which is assigned

transitional zoning . . . without obtaining appropriate conventional zoning.”

Id. , art. VIII, § 15.5.

With respect to this aspect of the City Council’s decision, U.S.

Cellular notes that “[it] expressly agreed to pursue the platting and zoning

change as a condition to the granting of the special use permit.” U.S.

Cellular argues that “nothing in the [Zoning Ordinance] prohibit[ed] [the

City Council from] granting the special use permit subject to acquiring the

proper zoning and platting.” We disagree.

Under the plain language of article VIII, section 15.5, “[n]o new use

may be commenced on land which is assigned transitional zoning . . .

without obtaining appropriate conventional zoning.” Although U.S.

(...continued)
27

149, at 8-15, 19, 22, 24.

-35-
Cellular argues that section 15.5 only prohibits “use,” rather than the grant

of a conditional permit, the City Council had, on at least one previous

occasion, interpreted section 15.5 in a manner consistent with the

construction employed in its denial of SP-149. Further, even if we agreed

with U.S. Cellular’s construction of section 15.5, we may not overturn the

City Council’s interpretation of its own Zoning Ordinance. Rather, our task

is a limited one; our sole inquiry under 47 U.S.C. § 332(c)(7)(B)(iii) is

“whether the [local authority’s] decision, as guided by local law , is

supported by substantial evidence.” Borough of Ho-Ho-Kus , 197 F.3d at 72

(emphasis added). As to the City Council’s decision here, the answer is

plainly yes.

U.S. Cellular does not dispute the fact that the East Avenue property

was zoned AR-1, a “transitional” zoning category under the Zoning

Ordinance; nor does it contend that it had “obtain[ed]” conventional

zoning. See Broken Arrow Zoning Ord. art. VIII, § 15.5. Thus, SP-149

clearly falls within section 15.5’s prohibition. “N othing in the

Telecommunications Act forbids local authorities from applying general

and nondiscriminatory standards derived from their zoning codes.”

Aegerter v. City of Delafield , 174 F.3d 886, 891 (7th Cir. 1999).

Accordingly, we conclude that substantial evidence supported the City

-36-
Council’s denial based on section 15.5.

In an attempt to avoid this result, U.S. Cellular argues that “[i]t

makes no sense to require U.S. Cellular to expend the time and resources to

obtain the platting and rezoning of the Subject Property before it knows

whether it can obtain a special use permit to place the tower on the

property.” Even if we agreed with U.S. Cellular, this would not alter our

conclusion; so long as the municipality’s decision is grounded in local law

and supported by substantial evidence, 47 U.S.C. § 332(c)(7)(B)(iii) is

satisfied. On this point, the Seventh Circuit’s observation is instructive:

Some may disagree with Congress’s decision to leave so much
authority in the hands of state and local governments to affect the
placement of the physical infrastructure of an important part of the
nation’s evolving telecommunications network. But that is what it
did when it passed the Telecommunications Act of 1996, and it is not
our job to second-guess that political decision.

City of Delafield , 174 F.3d at 892.

The City Council also based its denial on section 18.13, which

provides that “[t]he applicant [must] demonstrate[] to the City Council’s

reasonable satisfaction that no existing tower or other structure can

accommodate the applicant’s proposed antenna.” Broken Arrow Zoning

Ord. art. VIII, § 18.13. In the Planning Commission’s April 26, 2001,

Agenda Packet, a copy of which was provided to U.S. Cellular, Planning

Director Daroga noted that there was an alternative site for U.S. Cellular’s

-37-
proposed 120-foot monopole, located slightly more than one-half mile from

SP-149’s proposed site on the east side of County Line Road.

U.S. Cellular offered no substantive evidence concerning the

feasibility of co-locating on the County Line Road tower. 28
The only

evidence in the record concerning the feasibility of this site consists of the

following: (1) statements before the Planning Commission from Doyle

Groat, a U.S. Cellular engineer; 29
and (2) statements before both the

Planning Commission and the City Council from Kevin Coutant, U.S.

Cellular’s attorney, suggesting the inadequacy of the site. 30
U.S. Cellular

offered no evidence to substantiate Mr. Groat’s or Mr. Coutant’s

statements. Thus, substantial evidence supported the City Council’s denial

based on section 18.13. Cf. Todd , 244 F.3d at 63 (“For a

28
The affidavit attached to U.S. Cellular’s SP-149 application stated only
that “[t]here are no existing towers or permits for towers located within [one-
half] mile of the [SP-149] site.” Sach Affid. ¶ 3 (emphasis added).
29
With respect to alternative locations, Mr. Groat stated that “[U.S.
Cellular had] looked at a number of locations,” and then discussed, in extremely
general terms, U.S. Cellular’s technical requirements in locating a site for tower
construction.
30
Before the City Council, Mr. Coutant stated: “[U.S. Cellular] looked at
that tower and – and would advise you that that’s a 100-foot tower . . . [which] is
significantly lower than the 120-feet level that is required for this location and
accordingly narrows the coverage . . . [and] diminish[es] the quality of coverage
in [the] area that’s designed to be covered by this tower.” Transcript of June 18,
2001, Broken Arrow City Council Meeting on SP 149, at 9-10.

-38-
telecommunications provider to argue that a permit denial is impermissible

because there are no alternative sites, it must develop a record

demonstrating that it has made a full effort to evaluate the other available

alternatives and that the alternatives are not feasible to serve its

customers.”).

To the extent U.S. Cellular suggests that it was the City’s burden to

come forward with evidence concerning the feasibility of co-locating on

this site, we disagree. The Zoning Ordinance explicitly places this burden

on the applicant. Broken Arrow Zoning Ord. art. VIII, § 18.13.

Further, although denials may not be based on “conjecture” or

“speculation,” Petersburg Cellular Partnership v. Bd. of Sup’rs of

Nottoway County , 205 F.3d 688, 695 (4th Cir. 2000), “[w]e doubt that

Congress intended local zoning boards to pay for experts to prove that there

are alternative sites for a proposed tower,” National Tower, LLC v.

Plainville Zoning Bd. of Appeals , 297 F.3d 14, 24 (1st Cir. 2002).

Accordingly, we firmly reject the district court’s statement that “[t]he

opinions expressed by the City officials about the existence of other

adequate existing locations amount to nothing more than ‘generalized’

concerns’ which are not adequate to fill the record with substantial

evidence.” U.S. Cellular I , at 12. In AT&T Wireless PCS, Inc. v. City

-39-
Council of City of Virginia Beach , the Fourth Circuit dismissed a similar

argument:

In all cases of this sort, those seeking to build will come armed
with exhibits, experts, and evaluations. [The
telecommunications provider], by urging us to hold that such a
predictable barrage mandates that local governments approve
applications, effectively demand that we interpret the Act so as
always to thwart average, nonexpert citizens; that is, to thwart
democracy. The district court dismissed citizen opposition as
‘generalized concerns.’ Congress, in refusing to abolish local
authority over zoning of personal wireless services,
categorically rejected this scornful approach.

155 F.3d 423, 431 (4th Cir. 1998).

Based on the foregoing, 31
we conclude that “substantial evidence

contained in [the] written record” supported the City Council’s denial of

SP-149. 32 47 U.S.C. § 332(c)(7)(B)(iii).

4. SP-150

U.S. Cellular advances similar arguments in challenging the City

Council’s denial of SP-150. At the outset, we note that U.S. Cellular’s

31
Because we conclude that SP-149 did not comply with sections 15.5 and
18.13, we need not consider the other two bases advanced by the City Council
under sections 18.4 and 18.14 of the Zoning Ordinance.
32
The district court also concluded that the City Council’s denial of SP-149
violated 47 U.S.C. § 332(c)(7)(B)(i)(II), which provides that local governments
“shall not prohibit or have the effect of prohibiting the provision of personal
wireless services.” Insofar as U.S. Cellular did not advance this argument before
the district court, the district court erred in considering SP-149 under 47 U.S.C. §
332(c)(7)(B)(i)(II).

-40-
contention that the City Council did not apply the standards and criteria set

forth in the Zoning Ordinance is wholly without merit. 33

Similarly, we reject U.S. Cellular’s argument that the City Council’s

denial of SP-150 was not supported by substantial evidence. U.S.

Cellular’s proposed site, the South Oneta Road property, was zoned AA-1,

a transitional-zoning category. Under the Zoning Ordinance, “no new use

may be commenced on land, which is assigned transitional zoning . . .

without obtaining appropriate conventional zoning.” Broken Arrow Zoning

Ord. art. VIII, § 15.5. Although the City Council had conditionally

approved the South Oneta Road property for conventional zoning on

February 21, 2001, U.S. Cellular does not contend that conventional zoning

had in fact been “obtain[ed].” 34
See id.

Further, the City Council had earmarked the South Oneta Road

33
In accordance with section 18.12, City Council members discussed the
following: (1) pursuant to § 18.12(i), “whether . . . there are suitable, existing
towers or other supporting structures capable of meeting the technological needs
of the applicant,” see, e.g., Transcript of June 18, 2001, Broken Arrow City
Council Meeting on SP-150, at 31, 36-37, 46; (2) pursuant to § 18.12(b) and (c),
the “proximity of the tower to residential structures and adjacent residential lot
boundaries” and the “nature of uses on adjacent and nearby properties,” see, e.g.,
Transcript of June 18, 2001, Broken Arrow City Council Meeting on SP-150, at
36; (3) pursuant to § 18.12(a) and (f), the height and design of the proposed
tower, with particular reference to those design characteristics which have the
effect of reducing or eliminating visual obtrusiveness, see, e.g., Transcript of June
18, 2001, Broken Arrow City Council Meeting on SP-150, at 38, 40, 53-56.
34
For further discussion on this point, see pages 36-38, supra.

-41-
property for A-1 zoning. Under section 18.11(G), “towers are normally

discouraged in A-1 . . . zoning districts.” Id. , art. VIII, § 18.11(G). Where

an applicant seeks a permit to construct in such disfavored areas, section

18.11 requires that the applicant “establish the elements of the application

by clear and convincing evidence.” Id. Despite section 18.11(G)’s

requirement of “clear and convincing” evidence in support of the

application, U.S. Cellular ignored the City Council’s request that the

company provide information on the feasibility of 100-foot, camouflaged

tower for the SP-150 site. Thus, substantial evidence supported the City

Council’s denial under section 18.13, which provides: “No new tower

should be permitted by the City Council, unless the applicant demonstrates

to the City Council’s reasonable satisfaction that no existing tower or other

structure can accommodate the applicant’s proposed antennae.” Id. , art.

VIII, § 18.13.

III. Conclusion

Based on the foregoing, we REVERSE the district court’s grant of

summary judgment in U.S. Cellular I , No. 01-CV-0518-E(M), and AFFIRM

the district court’s grant of summary judgment in U.S. Cellular II , No. 01-

CV-0550-EA(J).

-42-
U.S. Cellular v. City of Broken Arrow, Oklahoma

Nos. 02-5128 and 02-5172

SHADUR, District Judge, dissenting:

Some 30 years ago the Mark Harris novel Bang the Drum Slowly was

made into a critically acclaimed motion picture of the same name, with the

then-little-known Robert DeNiro playing one of the two protagonists and

the equally-little-known Michael Moriarty playing the other. Although the

film’s subject matter was baseball, its larger theme provided keen insights

into the human condition.

DeNiro’s role was that of unlettered Georgia rustic Bruce Pearson--a

rube with the same quality of naivete that was captured by Ring Lardner in

such works as Letters from a Busher, You Know Me, Al and Alibi

Ike--whose life-threatening affliction with Hodgkins disease was unknown

to his teammates, the team manager and the owner. Only star pitcher Henry

Wiggin, 1 played by Moriarty, knew of the fatal illness and of Bruce’s

deteriorating condition--and he used his leverage as the team’s key man to

force management, without his explaining the reason, to keep Bruce (a

1
One indicium of Bruce’s slowness of perception was that all of the other
players, knowing that Wiggin was an aspiring writer, referred to him by the
nickname “Author.” Bruce mistakenly caught that as “Arthur”--so he invariably
addressed the Moriarty character by that name.
relief catcher of limited ability) on the team roster.

Bruce, the hapless catcher played by DeNiro, was the target of

constant ragging by his teammates because of his unworldliness--including

their victimizing him as an invariable loser in their perpetual card game of

TEGWAR, no matter what cards he held. When, in response to the effort

by the Moriarty character to wise him up, Bruce answered that he had no

idea why he lost every time--perhaps he was just a bad card player--the

Moriarty-DeNiro exchange went something like this:

“Don’t you know what TEGWAR stands for?”

“No.”

“It’s The Exciting Game Without Any Rules.”

What is all of this doing in a dispute between U.S. Cellular and the City of

Broken Arrow? This is after all supposed to be an opinion (albeit a dissenting

one), not a movie review. But it could not be more relevant, because the City

Council in Broken Arrow has outdone TEGWAR with an even more egregious

brand of anarchy: It has in fact prescribed a set of rules, but when U.S. Cellular

has then conformed meticulously to every one of the prescribed standards, the

Broken Arrow response has been “Too bad--you lose anyway.” And regrettably

the majority opinion has sanctioned that level of lawlessness on the City’s part.

It is, I suggest, impossible to read the record as to U.S. Cellular’s two

-2-
rejected applications for special use permits for the construction of cellular

transmission towers without being convinced that the rejection of those

applications was foreordained, irrespective of U.S. Cellular’s satisfaction of all of

the standards established by Broken Arrow’s own ordinance dealing with that

subject. But it is not necessary, I believe, to go through such a painstaking (and

painful) exercise to demonstrate why the results of our appellate review should be

the opposite of those arrived at by the majority: the affirmance rather than the

reversal of one district court’s judgment that had rejected the City’s denial of

application SP-149, and the reversal rather than the affirmance of the other

district court’s upholding of the denial of application SP-150. Instead it should

suffice, I think, to point to two fatal flaws in each of Broken Arrow’s permit

denials.

To begin with, it must be remembered that it was the City Council that

reached each of the decisions here, not the City’s staff people who provided

potential input for those decisions both pre-decision (most recently by the

Planning Commission) and, more distressingly, post-decision (by the Planning

Director). And here is the entire record of the Council’s vote and of its two

stated reasons for the turndown in SP-150:

Mr. McCaleb: I move to deny.

Mr. Petrik: I’m going to second that for a couple of reasons.
One, there is three existing towers close to it. There is--and that’s

-3-
 cell towers; there’s a couple of tv antennas that could very well take
the--the wind load from--from this; and I think there are better
locations for this tower.

Mr. Reynolds: So we have a motion and a second for denial.
Any other discussion? No? Okay. We’ll call roll.

Mr. Heinrichs: Councilman McCaleb?

Mr. McCaleb: Yes.

Mr. Heinrichs: Councilman Thurman?

Mr. Thurman: Yes.

Mr. Heinrichs: Councilman Carter?

Mr. Carter: Yes.

Mr. Heinrichs: Vice Mayor Petrik?

Mr. Petrik: Yes.

Just as has to be true of any government controlled by law, those who vote on

such a governmental action must be viewed as having done so only in the

particular terms that they themselves have marked out. So too, the even more

terse record of the vote in SP-149 necessarily reflects the actual City Council

decision there: an affirmative vote on a motion that was based entirely on two

specified grounds:

Motion by Petrik, second by Carter to deny SP 149 as the required
setback will inhibit residential growth and there are alternate
locations available.

It simply will not do--as was the case here in both instances--for an

-4-
administrative employee, a nondecisionmaker, the City’s Planning Director, to

inject other reasons post-hoc as to why the City Council might have reached the

same conclusions, but that the City Council itself did not articulate in its vote--its

decision. Indeed, when any administrative decisionmaker is presented with a host

of possible reasons for reaching a decision but then limits its own statement in

support of the announced decision to fewer than all of those possibilities, it

distorts the decisional process seriously to operate on the premise that the omitted

reasons apply as well. As a unanimous United States Supreme Court has taught in

FTC v. Indiana Federation of Dentists, 476 U.S. 447, 455 (1986):

Once the Commission has chosen a particular legal rationale for
holding a practice to be unfair, however, familiar principles of
administrative law dictate that its decision must stand or fall on that
basis, and a reviewing court may not consider other reasons why the
practice might be deemed unfair.

Accord, rejecting “post hoc rationalizations for agency action” (in that instance

proffered after the fact by appellate counsel rather than, as here, by administrative

staffers), Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 50 (1983), a decision cited and quoted with approval by this court in

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574-75 (10 th Cir. 1994). 2

2
This case’s posture differs sharply from the situation in which a
reviewing court will uphold a lower court’s decision if any line of analysis
supports the result reached. In the administrative review context, the decisions
exemplified by Indiana Federation and Motor Vehicle Mfrs. prescribe--whether to
(continued...)

-5-
 Here Congress has decreed that under the Telecommunications Act it is the

actual “decision by a State or local government or instrumentality thereof,” and

not what might have been its decision, that must be “supported by substantial

evidence.” Although the statute also requires a “written record,” that does not

permit, as the majority would have it, a retrospective rewrite that does not

track--that goes far beyond--the actual decision. In this instance the written

record of what the City Council actually decided is embodied in the transcripts of

its proceedings and meeting minutes that I have quoted earlier. In those terms the

bulk of the majority’s extended rationale falls away, and what little remains--what

speaks to the two reasons advanced in each of the City Council’s actual

votes--does not even begin to approach the statutory standard.

There is no occasion, because I do not speak for the court, to itemize here

just how unsupported the City Council’s own specified reasons for its decisions

were in any relevant factual sense. Suffice it to say that the City Council’s

contemporaneously stated reasons (not the other post-hoc rationalizations) for its

two turndown votes simply do not satisfy the “substantial evidence” requirement

of the Telecommunications Act, a conclusion that has been amply demonstrated

2
(...continued)
guard against arbitrary action by such nonjudicial decisionmakers or
otherwise--that the decision under review must comprise both the announced
result and the stated reasons for reaching it.

-6-
by U.S. Cellular in each instance. And that being so, the reasons that have been

found sufficient by the majority--reasons that were advanced by Broken Arrow’s

Planning Director’s letters after the fact to bolster the turndowns--are entirely

beside the mark.

There is one other aspect of the two rejections that also bears special

mention: the distortion of Broken Arrow’s own zoning ordinance to find fault

with U.S. Cellular for not having sought and obtained rezoning of the two

properties before proceeding with its applications for permission to build the

telecommunications towers. Section 15.5 of Broken Arrow’s zoning ordinance

expressly provides that “no new use may be commenced on land which is

assigned transitional zoning without obtaining appropriate conventional zoning”

(emphasis added). What that ordinance does not say is that no permit that would

allow such use must be obtained before the necessary zoning change is sought.

Here U.S. Cellular specifically agreed, as a condition to its obtaining each

special use permit, to pursue all required platting and zoning changes so that no

actual use of that permit--no use of the property for a tower--could be commenced

until the proper zoning was in place. And that represented an eminently

reasonable ordering of events, for it would clearly make no sense for U.S.

Cellular to be required to go ahead with the trouble and expense of seeking

rezoning until it knew that it could use the properties for the desired purposes.

-7-
 In sum, Congress has enacted the Telecommunications Act for a dual

purpose: to facilitate the growth of wireless telephone service on a national basis,

while at the same time preserving local control--subject to specified

restrictions--over the siting of towers. What the majority has permitted Broken

Arrow to do, I submit, is to subvert the careful balance prescribed by Congress.

Accordingly, I respectfully dissent.

-8-