Preferred Sites, LLC v. Troup County

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ JULY 10, 2002
THOMAS K. KAHN
No. 01-14182 CLERK
________________________
D. C. Docket No. 00-00081-CV-JCT-3

PREFERRED SITES, LLC,

Plaintiff-Appellee-
Cross-Appellant,

versus

TROUP COUNTY,

Defendant-Appellant-
Cross-Appellee.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(July 10, 2002)

Before BLACK and HULL Circuit Judges, and LAZZARA*, District Judge.

BLACK, Circuit Judge:

*
Honorable Richard A. Lazzara, U.S. District Judge for the Middle District
of Florida, sitting by designation.
 This case involves an application of the Telecommunications Act of 1996

(TCA) to the land use decisions of a local government. Pub. L. No. 104-104, 110

Stat. 56 (codified in scattered sections of 15 and 47 U.S.C.). Preferred Sites, LLC

(Appellee) filed suit against Troup County, Georgia (Appellant), alleging the

county’s Zoning Appeals and Planning Board (the Board) violated § 704(a) of the

TCA by denying its application for conditional use approval to construct a multiple

user-wireless communication tower. Appellee alleged the Board’s decision was

not supported by substantial evidence contained in a written record, as required by

§ 704(a). The district court agreed, granting summary judgment in favor of

Appellee and ordering Appellant to approve the conditional use permit. We affirm.

I. BACKGROUND

A. Factual and Procedural Background

Appellee owns, operates, and manages free-standing wireless

communication towers, which typically are used to provide cellular telephone

service. Appellee also acts as a site selection firm for the wireless communication

industry. As part of this business, Appellee sought to construct a 250-foot tower

on a 7.6 acre parcel of property owned by Charles and Ruth Bailey in LaGrange,

Georgia, which is located in Troup County. To obtain permission to construct the

tower, Appellee, through its agent, applied to the Board for conditional use

2
approval. Appellee’s application was required by the Troup County Zoning

Ordinance, which sets forth the standards for placement, design, and removal of

telecommunications antennas and towers. Troup County, Ga., Comprehensive

Zoning Ordinance, Appendix A, Art. IV, § 14 (1999).2

On June 8, 2000, the Board held a public hearing at which it considered

Appellee’s conditional use application. The minutes of the hearing do not contain

the contents of any discussion or debate concerning the application. Appellant,

however, submitted to the district court the affidavit of Mike Dobbs, the Zoning

Administrator of Troup County, who attended the meeting. The affidavit stated

2
The ordinance specifies the following requirements for a proposed tower:
(1) the tower must be constructed on property in an approved zoning district;
(2) the tower must be set back from any off-site structure the more restrictive
distance of (a) 500 feet or (b) the full height of the tower from any off-site
structure and/or be designed to collapse within a specific clear area; (3) the tower
must be enclosed by security fencing not less than 6 feet in height and must be
equipped with an appropriate anti-climbing device; and (4) the tower must meet or
exceed the standards and regulations of the Federal Aviation Administration and
the Federal Communications Commission at the time of erection. Id. §§ 14(e),
14(b)(1)-(3). In addition to these requirements, the ordinance provides the
following information must be in the conditional use request: (1) the height of the
proposed tower; (2) the proximity of the tower to residential structures and
residential district boundaries; (3) the nature and uses on adjacent and nearby
properties; (4) the surrounding topography; (5) the surrounding tree coverage and
foliage; and (6) the design of the tower, with particular reference to design
characteristics which have the effect of reducing or eliminating visual
obtrusiveness. Id. §§ 14(e)(1)-(6). Finally, the ordinance provides the Board, in
granting a conditional use permit, may impose additional conditions as necessary
to minimize any adverse effects of the tower on adjoining properties. Id. § 14(e).
3
several members of the public verbally opposed construction of the tower. These

individuals apparently opposed the visual obtrusiveness of the proposed tower.

The affidavit, however, contained no further information concerning these citizens’

objections.

In addition, five petitions, which collectively contained the signatures of 58

individuals, were submitted to the Board. The petitions objected generally to the

construction of the tower. All five standard form petitions had three groupings of

blank lines: (1) a set of blank lines to write in the purpose of the petition, the

opinion being expressed, the property concerned, and the property’s specific

location; (2) a set of blank lines to write in an explanation of the proposal for

which the petition was being circulated; and (3) a set of lines for individuals’ full

signatures and complete addresses. Despite the presence of these blank lines, only

two of the petitions were complete, indicating both the purpose of the petition was

to oppose the tower and the proposal for which the petition was circulated was to

object to the construction of the tower. The third petition merely noted the location

of the proposed tower and indicated the proposal for which the petition was

circulated was to object to the construction of the tower. Finally, the fourth and

fifth petitions submitted to the Board contained no information other than the

signatures and addresses of people who live in LaGrange, Georgia. Other than the

4
five petitions, no evidence objecting to Appellee’s construction of the tower exists

in the record.

At the conclusion of the hearing, the Board voted unanimously to deny

Appellee’s request for conditional use approval. Thereafter, in a letter dated June

12, 2000, the Troup County Zoning Department provided written notification to

Appellee that the Board denied its application.

On July 11, 2000, Appellee filed suit against Appellant in the United States

District Court for the Northern District of Georgia, alleging the denial of its

application violated § 704(a) and requesting mandamus relief. In response,

Appellant claimed Appellee’s action was untimely filed and Appellee had failed to

meet the requirements of the zoning ordinance. Subsequently, Appellee requested

permission from the district court to amend its petition to add a claim for damages

pursuant to 42 U.S.C. § 1983.

Upon review of the written record, the district court held Appellee’s action

was filed within the statute of limitations. In addition, the court denied Appellee’s

request to amend its petition. The district court also held the Board violated

§ 704(a) because its denial of the application for conditional use approval was not

supported by substantial evidence. Accordingly, the district court granted

5
summary judgment in favor of Appellee and ordered Appellant to approve the

conditional use permit.

B. Background of the Telecommunications Act of 1996

The TCA was enacted “to provide for a pro-competitive, de-regulatory

national policy framework designed to accelerate rapidly private sector deployment

of advanced telecommunications and information technologies and services to all

Americans by opening all telecommunications markets to competition.” H.R.

Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 124.

In addition, the TCA was intended “to promote competition and reduce regulation

in order to secure lower prices and higher quality services for American

telecommunications consumers and encourage the rapid deployment of new

telecommunications technologies.” Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56, 56 (1996). Wireless telephone service was one of the many

telecommunications technologies Congress considered when enacting the TCA.

With respect to the construction of telecommunications facilities, Congress

recognized zoning decisions by state and local governments had created an

inconsistent array of requirements, which inhibited both the deployment of

personal communications services and the rebuilding of a digital technology-based

cellular telecommunications network. H.R. Rep. No. 104-204, at 94 (1995),

6
reprinted in 1996 U.S.C.C.A.N. 10, 61. Despite this recognition, Congress also

acknowledged “there are legitimate State and local concerns involved in regulating

the siting of such facilities . . ., such as aesthetic values and the costs associated

with the use and maintenance of public rights-of-way.” Id. at 94-95, reprinted in

1996 U.S.C.C.A.N. 10, 61. As a result, Congress enacted § 704(a) to “preserve[]

the authority of State and local governments over zoning and land use matters

except in . . . limited circumstances . . . .” H.R. Conf. Rep. No. 104-458 (1996), at

207-08, reprinted in 1996 U.S.C.C.A.N. 124, 222.

7
In § 704(a), codified at 47 U.S.C. § 332(c)(7),3 Congress enunciated a

3
47 U.S.C. § 332(c)(7) provides:
(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this chapter
shall limit or affect the authority of a State or local government
or instrumentality thereof over decisions regarding the
placement, construction, and modification of personal wireless
service facilities.
(B) Limitations
(i) The regulation of the placement, construction, and
modification of personal wireless service facilities by any State
or local government or instrumentality thereof—
(I) shall not unreasonably discriminate among
providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of
prohibiting the provision of personal wireless
services.
(ii) A State or local government or instrumentality
thereof shall 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.
(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.
(iv) No 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.
(v) Any person adversely affected by any final action or
8
number of substantive and procedural limitations upon the authority of state or

local governments to regulate the construction of facilities for wireless

communication services. Local zoning authorities may not unreasonably

discriminate among providers of functionally equivalent services, may not make

zoning decisions which prohibit or effectively prohibit the provision of personal

wireless services, and may not make zoning decisions premised on concerns

failure to act by a State or local government or any
instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action or
failure to act, commence an action in any court of
competent jurisdiction. The court shall hear and decide
such action on an expedited basis. Any person adversely
affected by an act or failure to act by a State or local
government or any instrumentality thereof that is
inconsistent with clause (iv) may petition the
Commission for relief.
(C) Definitions
For purposes of this paragraph—
(i) the term "personal wireless services" means
commercial mobile services, unlicensed wireless
services, and common carrier wireless exchange access
services;
(ii) the term "personal wireless service facilities"
means facilities for the provision of personal wireless
services; and
(iii) the term "unlicensed wireless service" means
the offering of telecommunications services using duly
authorized devices which do not require individual
licenses, but does not mean the provision of direct-to-
home satellite services (as defined in section 303(v) of
this title).
9
regarding the environmental effects of radio frequency emissions associated with

wireless telephone service. 47 U.S.C. §§ 332(c)(7)(B)(i)(I), 332(c)(7)(B)(i)(II),

332(c)(7)(B)(iv) (1994).

To ensure the enforcement of these limitations, Congress delineated the

manner in which zoning decisions are to be made and also provided a mechanism

for judicial relief for persons aggrieved by decisions inconsistent with § 704(a)’s

requirements. §§ 332(c)(7)(B)(iii), 332(c)(7)(B)(v). For example, decisions to

deny approval for the placement, construction, or modification of personal wireless

service facilities must be both “in writing and supported by substantial evidence

contained in a written record.” § 332(c)(7)(B)(iii). In addition, if a state or local

government acts in a manner inconsistent with § 704(a)’s statutory requirements,

any person adversely affected by the action may, “within 30 days after such

action . . . commence an action in any court of competent jurisdiction.”

§ 332(c)(7)(B)(v). By structuring the TCA in this manner, Congress explicitly

preserved local zoning authority over the siting of wireless facilities, while

permitting judicial oversight as to the manner in which such decisions are made.

§§ 332(c)(7)(A), 332(c)(7)(B)(v).

II. DISCUSSION

10
 Appellant raises the following three issues on appeal: (1) whether Appellee’s

suit was timely filed; (2) whether the Board’s decision to deny the application for

conditional use approval was supported by substantial evidence contained in a

written record; and (3) whether Appellee was entitled to mandamus relief.4 All

three issues involve questions of first impression in this Circuit concerning the

application of § 704(a) to local zoning decisions.

A. Timeliness of Appellee’s Suit

The TCA provides any party aggrieved by a state or local authority’s “final

action” may challenge such action, if it is inconsistent with § 704(a)’s

requirements, in any court of competent jurisdiction, as long as the challenge is

filed within 30 days of the final action. 47 U.S.C. § 332(c)(7)(B)(v) (1994). In

this case, Appellee filed its complaint challenging the Board’s denial 29 days after

receiving written notification of the decision. Appellant, however, argued

Appellee’s suit was untimely filed. The district court disagreed, holding

Appellee’s challenge was filed within the statute of limitations. Appellant

contends the Board’s oral decision to deny Appellee’s application was the “final

4
Appellee cross-appeals, arguing the district court erred by denying its
request to amend its complaint to include a claim for damages under 42 U.S.C.
§ 1983. We affirm the district court’s decision on this issue without discussion.
See 11th Cir. R. 36-1.
11
action” which commenced the running of the 30-day statute of limitations, thereby

baring Appellee’s suit.5

Whether the district court correctly construed § 704(a)’s statute of

limitations is a question of law subject to de novo review. See Atl. Land &

Improvement Co. v. United States, 790 F.2d 853, 857 (11th Cir. 1986) (analyzing

statute of limitations on tax assessments de novo); see also United States v. Am.

States Ins. Co., 252 F.3d 1268, 1270 (11th Cir. 2001) (analyzing district court’s

interpretation and application of statute of limitations de novo).

As with any question of statutory interpretation, we begin by examining the

text of the statute to determine whether its meaning is clear. See Hughes Aircraft

Co. v. Jacobson, 525 U.S. 432, 438, 119 S. Ct. 755, 760 (1999). We must,

therefore, examine the language of the TCA for ambiguity. The statute provides in

pertinent part:

(iii) Any decision by a State or local government or instrumentality
thereof to deny a request to place, construct, or modify personal

5
If the “final action” was the Board’s June 8, 2000 oral decision denying
conditional use approval, such that the “final action” would be the last act the
Board could take with respect to deciding whether to deny the request, Appellee’s
complaint, filed more than 30 days after the oral decision, would be untimely. If,
however, the “final action” in this case was the June 12, 2000 memorandum
containing the written denial, Appellee’s complaint, filed on June 11, 2000, would
have been filed within the 30-day statute of limitations.

12
 wireless service facilities shall be in writing and supported by
substantial evidence contained in a written record .

....

(v) Any person adversely affected by any final action or failure to act
by a State or local government or any instrumentality thereof that is
inconsistent with this subparagraph may, within 30 days after such
action or failure to act, commence an action in any court of competent
jurisdiction. The court shall hear and decide such action on an
expedited basis.

47 U.S.C. §§ 332(c)(7)(B)(iii), 332(c)(7)(B)(v) (emphasis added).

The term “final action” is not defined by the statute, but its plain meaning is

not ambiguous. The language of the statute requires the issuance of a “decision . . .

in writing.” 47 U.S.C. § 332(c)(7)(B)(iii). The language also provides for an

appeal from a “final action” within 30 days of “such action.” § 332(c)(7)(B)(v).

To determine when the statute of limitations begins to run under § 704(a), we must,

therefore, determine the meaning of “final action” in § 332(c)(7)(B)(v) as it relates

to a “decision . . . in writing” in § 332(c)(7)(B)(iii).

Based on the plain language of the statute, we conclude a “final action”

occurs when the state or local authority issues its written decision. The statute

expressly mandates a state or local government’s decision to be committed to

writing. Until the state or local authority issues its written notification, its task

under the statute is not complete. Putting the decision in writing is the last action

13
the authority is statutorily required to take; therefore, the issuance of the written

decision is logically the “final action.” This reading of the provisions of § 704(a)

makes sense because no action by the state or local authority can be “final” until

the decision is written.6 Consequently, the plain language of § 704(a) mandates the

written decision is the “final action.”7 Cf. Indus. Communications & Elecs., Inc. v.

Town of Falmouth, No. 98-397-P-H, 1999 WL 33117159, at *3 (D. Me. June 10,

1999) (“[T]here can be no final action by the local permitting body until there is a

written decision.”) (citation omitted).

Concluding the “final action” is the state or local authority’s written decision

is also consistent with traditional appellate procedure. An action filed by an

aggrieved party under § 332(c)(7)(B)(v) is similar to an appeal. Customary

appellate practice requires entry of a written judgment from which a party can

appeal. See generally Fed. R. App. P. 3 & Fed. R. Civ. P. 54, 58; see also 12

6
We note a state or local government or instrumentality thereof could not
circumvent a party’s right to commence an action by not issuing a written decision
because the TCA also provides a party may file an action for a failure to act. 47
U.S.C. § 332(c)(7)(B)(v).
7
The plain meaning of the language “final action” also is not ambiguous
because to give the term “final action” any other meaning would create varying and
inconsistent limitations periods in § 704(a). Parties could contend any number of
actions, such as the oral pronouncement of the decision, was the “final action.”
Creating such a lack of uniformity in the application of the 30-day statute of
limitations is a result contrary to the language of the statute.
14
James Wm. Moore, et al., Moore’s Federal Practice §§ 58.02- 58.04 (3d ed. 2002).

Appellate procedure also provides that the time within which an appeal can be filed

runs from the entry of the written decision or order being appealed. Fed. R. App.

P. 4(a); see also 12 James Wm. Moore, et al., Moore’s Federal Practice § 58.04

(“The time for filing . . . a notice of appeal is determined by the time of entry of

judgment.”). See generally Reynolds v. Golden Corral Corp., 213 F.3d 1344,

1345-46 (11th Cir. 2000) (“[C]ases from both the Supreme Court and the circuit

courts of appeal make it clear that the time to file a notice of appeal does not begin

to run until a separate judgment is entered pursuant to Rule 58.” (citations

omitted)).8 As a result, just like the period of time within which a party may file

an appeal traditionally runs from the entry of a written decision, the time within

which a party may commence an action under § 704(a) starts to run from the date

on which the state or local government issues its written decision. The “final

action” which triggers the running of the 30-day statute of limitations, therefore, is

the state or local authority’s issuance of its decision in writing.

B. Substantial Evidence for the Board’s Denial

8
In addition, even when an appeal is filed after the court announces a
decision, but before the entry of the judgment, it is treated as being filed on the
date of entry. Fed. R. App. P. 4(b)(2); see also Virgo v. Riviera Beach Assocs.,
Ltd., 30 F.3d 1350, 1356-57 (11th Cir. 1994) (holding premature notice of appeal
was treated as entered on date of entry of final judgment).
15
 Section 704(a) requires a decision by a zoning board denying a request to

construct a personal wireless service facility, i.e., a tower, to be both in writing and

supported by substantial evidence contained in a written record. 47 U.S.C.

§ 332(c)(7)(B)(iii) (1994). Appellant contends the district court erred in holding

its decision to deny Appellee’s application for conditional use approval was not

supported by substantial evidence contained in a written record.

Although § 704(a) requires a local zoning board’s decision to be both in

writing and supported by substantial evidence, it does not statutorily define the

term “substantial evidence.”9 The Conference Committee for the TCA, however,

expressly noted “substantial evidence” is meant to be “the traditional standard used

for judicial review of agency actions.” H.R. Conf. Rep. 104-458, at 208, reprinted

in 1996 U.S.C.C.A.N. 124, at 223; see also Telespectrum, Inc. v. Pub. Serv.

Comm’n, 227 F.3d 414, 423 (6th Cir. 2000) (concluding “substantial evidence” as

used in the TCA means the traditional standard used for judicial review of agency

actions); Petersburg Cellular P’ship, 205 F.3d 688, 694 (4th Cir. 2000) (same);

Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 407-08 (3d Cir. 1999)

9
The TCA also fails to define what is required for a decision to be “in
writing.” We recognize the district court held Appellant’s decision failed to meet
the “in writing” requirement of § 332(c)(7)(B)(iii). We express no opinion on the
issue, however, because it is not necessary for the resolution of this case, as we
conclude the decision was not supported by substantial evidence.
16
(same); Aegerter v. City of Delafield, Wis., 174 F.3d 886, 889 (7th Cir. 1999)

(same); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)

(same). Moreover, “substantial evidence” is a legal term of art, so we presume

Congress intended for us to apply its established meaning. See McDermott Int’l,

Inc. v. Wilander, 498 U.S. 337, 342, 111 S. Ct. 807, 811 (1991).

“Substantial evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217 (1938).

Although the “substantial evidence” standard is not as stringent as the

preponderance of the evidence standard, it requires courts to take a harder look

than when reviewing under the arbitrary and capricious standard. Color Pigments

Mfrs. Ass’n, Inc. v. OSHA, 16 F.3d 1157, 1160 (11th Cir. 1994). Finally, to

determine whether the substantial evidence standard is met, a court should view the

record in its entirety, including evidence unfavorable to the state or local

government’s decision. Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490,

523, 101 S. Ct. 2478, 2497 (1981).

A court cannot substitute its own judgment for that of the local board, but it

must overturn the board’s decision if the decision is not supported by substantial

evidence. See Bickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980, 984 (11th Cir.

17
1989). As a result, the TCA’s requirement that local decisions be supported by

substantial evidence “does not ‘affect or encroach upon the substantive standards

to be applied under established principles of state and local law.’” Oyster Bay, 166

F.3d at 494 (quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment, 24 F. Supp. 2d

359, 366 (D.N.J. 1998)); see also AT&T Wireless Servs. of Fla., Inc. v. Orange

County, 23 F. Supp. 2d 1355, 1358-59 (M.D. Fla. 1998) (noting same). We

have reviewed the record in its entirety and conclude the Board’s decision to deny

Appellee’s application for conditional use approval was unsupported by substantial

evidence. The record reveals Appellee submitted an application for conditional use

approval to construct a 250-foot wireless telecommunications tower on property

with an appropriate zoning classification approved for the construction of a tower.

Appellee’s application included all the information required by the Troup County

zoning ordinance. Although a public hearing on Appellee’s application was held

on June 8, 2000, the minutes of the hearing do not reflect that any opposition to the

application was raised.

The only evidence of opposition to Appellee’s application contained in the

written record are the five petitions signed by a total of 58 citizens of LaGrange,

Georgia. Of the five petitions, two contained only individuals’ signatures and

addresses. Nowhere on these two petitions was there even an indication of the

18
reason the individuals signed the petitions. Of the other three petitions, one was

only partially completed. It noted only the location of the proposed tower, but not

the purpose of the petition nor the opinion being expressed. The petition did,

however, indicate the proposal for which the petition was circulated was to object

to the construction of the tower. Only two of the petitions were complete,

indicating both that the purpose of the petition was to express an opinion opposing

the specific tower Appellee intended to build and that the proposal for which the

petition was circulated was to object to the construction of that tower. Even these

two petitions, however, provided only generalized objections with no articulated

reasons for the opposition. Based on the entire written record, we conclude the

scant evidence of opposition to the construction of Appellee’s proposed tower did

not amount to substantial evidence.

Although the written record does not reflect any opposition to Appellee’s

conditional use application other than the petitions, we recognize Appellant

submitted the affidavit of Michael Dobbs to the district court. Dobbs’ affidavit

explains that he attended the hearing and recalls several members of the public,

who resided in the vicinity of the site for the proposed tower, verbally opposed

construction of the tower. Their opposition apparently consisted of general

concerns about the negative aesthetic impact of the proposed tower.

19
 Even if Dobbs’ affidavit could be construed as part of the written record, we

conclude the citizens’ generalized concerns about aesthetics are insufficient to

constitute substantial evidence upon which the Board could rely. Aesthetic

concerns may be a valid basis for denial of a permit if substantial evidence of the

visual impact of the tower is before the board. Southwestern Bell Mobile Sys., Inc.

v. Todd, 244 F.3d 51, 61 (1st Cir. 2001); Omnipoint, 181 F.3d at 408-09; Aegerter,

174 F.3d at 890-91; Oyster Bay, 166 F.3d at 495. Mere generalized concerns

regarding aesthetics, however, are insufficient to create substantial evidence

justifying the denial of a permit under §704(a) of the TCA. See generally

Telespectrum, 227 F.3d at 424; Omnipoint, 181 F.3d at 409; Oyster Bay, 166 F.3d

at 496. Consequently, even construing the concerns voiced about aesthetics at the

hearing as opposition contained in the written record, we conclude such meager

evidence is insufficient to support the Board’s denial of Appellee’s application.

There being no other evidence in the written record opposing the approval of

20
Appellee’s application,10 the Board’s decision was unsupported by substantial

evidence.

C. Remedy for Violation of Requirements of § 704(a)

Section 704(a) does not specify the appropriate remedy if a court of

competent jurisdiction determines a state or local authority violated the

requirements contained therein. Appellant contends, however, the district court

erred by granting mandamus relief requiring Appellant to grant Appellee’s

application for conditional use approval.

Whether the district court properly awarded equitable relief to Appellee is

subject to a mixed standard of review. See United States v. Gilbert, 244 F.3d 888,

908 (11th Cir. 2001). We review the district court’s decision to grant or deny

equitable relief for abuse of discretion, underlying questions of law de novo, and

10
Although the Board did not articulate any reasons for its denial at any time
prior to the commencement of this action, Appellant argued to the district court its
denial was based on three reasons: (1) Appellee lacked standing to apply for the
permit; (2) Appellee failed to establish gaps existed in wireless coverage; and
(3) Appellee did not include specifications of design characteristics which would
reduce or eliminate the tower’s visual obtrusiveness. These reasons, however,
were not espoused prior to the commencement of this action. Appellant may not
rely on rationalizations constructed after the fact to support the denial of
Appellee’s application. Instead, as the TCA requires, the reasons for the denial of
a request to place, construct, or modify personal wireless facilities must be
supported by substantial evidence contained in a written record. 47 U.S.C.
§ 332(c)(7)(B)(iii).
21
findings of fact upon which the decision to grant equitable relief was made under

the clearly erroneous standard. Id.; see also Fed. R. Civ. P. 52(a). See generally

Boire v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers, 479 F.2d

778 (5th Cir. 1973).11

The grant of equitable relief is a matter of judicial discretion. See CNA Fin.

Corp. v. Brown, 162 F.3d 1334, 1337 (11th Cir. 1998) (citing Eccles v. Peoples

Bank, 333 U.S. 426, 431, 68 S. Ct. 641, 644 (1948)); see also Castle v. Sangamo

Weston, Inc., 837 F.2d 1550, 1563 (11th Cir. 1988) (explaining grant or denial of

equitable relief lies in the discretion of the district court). Mandamus, which is an

extreme form of equitable relief, “is a writ designed to require an official to

perform an act required by law.” See Corn v. City of Lauderdale Lakes, 904 F.2d

585, 587 (11th Cir. 1990). Although the writ of mandamus was abolished by

Federal Rule of Civil Procedure 81(b), federal courts “may issue all writs

necessary or appropriate in aid of their respective jurisdictions and agreeable to the

usages and principles of law.” 28 U.S.C. § 1651 (2000); see also Armstrong v.

Martin Marietta Corp., 138 F.3d 1374, 1385 (11th Cir. 1998) (en banc)

11
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), this Court adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981.
22
(recognizing the writ of mandamus may issue to correct a clear abuse of discretion

or the failure to carry out a ministerial task).

Pursuant to their powers under 28 U.S.C. § 1651, federal courts continue to

grant equitable relief, which sometimes are referred to as “writs of mandamus.”

See generally Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch

Co., 260 F.2d 637, 640 (2d Cir. 1958) (noting courts continue to issue orders that

“for brevity, we may still speak of as a mandamus.”) As a result, a “writ of

mandamus” frequently grants the same relief to a party as a mandatory injunction,

which orders a party to “take action.” See Meghrig v. KFC Western, Inc., 516 U.S.

479, 484, 116 S. Ct. 1251, 1254 (1996), quoted in United States v. Gilbert, 244

F.3d 888, 908 n.49 (11th Cir. 2001); see also Tom Doherty Assocs. v. Saban

Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (“A mandatory injunction, in contrast

[to a prohibitory injunction], is said to alter the status quo by commanding some

positive act.”).

Although the TCA does not statutorily provide a remedy for a violation of

§ 704(a), it does require a “court of competent jurisdiction”12 to “hear and decide

12
Courts have construed this phrase and similar phrases to include both state
and federal courts. See Telespectrum, Inc. v. Pub. Serv. Comm’n, 227 F.3d 414,
421 (6th Cir. 2000) (concluding actions under the TCA may be filed in state or
federal court); Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 694
(4th Cir. 2000) (indicating same); see also Adams v. Maryland, 347 U.S. 179, 181-
23
[an action arising from a violation of § 704(a)] on an expedited basis.” 47 U.S.C.

§ 332(c)(7)(B)(v) (1994). A number of courts have considered this issue and held

an injunction (or other equitable relief) in the form of an order to issue the relevant

permits is a proper form of relief under § 704(a).13

82, 74 S. Ct. 442, 445 (1954) (reasoning “any court” included state courts);
Freeman Brown Co. v. Harris, 139 F. 105, 108 (4th Cir. 1905) (holding “court of
competent jurisdiction” includes federal courts).
13
See Brehmer v. Planning Bd., 238 F.3d 117, 120-22 (1st Cir. 2001)
(affirming district court’s grant of injunction ordering board to issue permit and
concluding remand would serve no useful purpose); Omnipoint Corp. v. Zoning
Hearing Bd., 181 F.3d 403, 409-10 (3d Cir. 1999) (affirming district court’s grant
of injunction ordering the board to issue a special exception to the planning code,
concluding remand served no purpose); Cellular Tel. Co. v. Town of Oyster Bay,
166 F.3d 490, 497 (2d Cir. 1999) (affirming district court’s grant of injunction
ordering the town to issue the permits, concluding remand would serve no useful
purpose); Patterson v. Omnipoint Communications, 122 F. Supp. 2d 222, 227-28
(D. Mass. 2000) (recognizing an injunction ordering issuance of a permit is a
proper remedy for a violation of the sitting provisions of the facilities sitting
subsection of the TCA); New York SMSA, L.P. v. Town of Clarkstown, 99 F. Supp.
2d 381, 389-90 (S.D.N.Y. 2000) (recognizing an injunction is the proper remedy
for a violation of the sitting provisions of the facilities sitting subsection of the
TCA, but declining to grant an injunction on the facts of the case); Group EMF,
Inc. v. Coweta County, 50 F. Supp. 2d. 1338, 1350-51 (N.D. Ga. 1999) (granting
mandamus relief to plaintiff by ordering board of commissioners to grant a permit
and concluding remand would frustrate intent of TCA to provide relief on an
expedited basis); 360 Communications Co. v. Bd. of Supervisors, 50 F. Supp. 2d.
551, 564 (W.D. Va. 1999) (holding injunctive relief ordering issuance of a permit
is the remedy that best serves the TCA’s goal of expediting resolution of actions
and granting such an injunction); Iowa Wireless Servs., L.P. v. City of Moline, Ill.,
29 F. Supp. 2d 915, 924 (C.D. Ill. 1998) (ordering city to issue permit as remedy
for violation of TCA); Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp.
732, 746 (C.D. Ill. 1997) (concluding an injunction directing county to issue permit
24
 In this case, the district court found Appellant violated § 704(a), thereby

entitling Appellee to relief. As a result, the district court granted Appellee’s

petition for summary judgment, which included a request for a writ of mandamus

ordering Appellant to grant the application for conditional use approval. Although

the district court’s order did not specify the type of relief granted, the nature of the

relief granted was in the form of an injunction.14 We conclude an injunction

ordering issuance of a permit is an appropriate remedy for a violation of § 704(a).

In light of our standard of review, we hold the district court’s determination

that remanding this case would frustrate the TCA’s guarantee of expedited relief

was appropriate relief under TCA); AT&T Wireless PCS Inc. v. City of Chamblee,
10 F. Supp. 2d 1326, 1333-34 (N.D. Ga. 1997) (granting mandamus relief to
plaintiff by ordering council to issue a permit, recognizing other forms of relief
could be appropriate, and concluding remand would serve no purpose but would
frustrate TCA’s direction to expeditiously resolve the matter); Sprint Spectrum L.P.
v. Jefferson County, 968 F. Supp. 1457, 1463 (N.D. Ala. 1997) (holding the TCA
vests court with authority to grant mandamus relief); BellSouth Mobility Inc. v.
Gwinnett County, Ga., 944 F. Supp. 923,929 (N.D. Ga. 1996) (granting mandamus
relief to plaintiff by ordering board of commissioners to grant a permit and
concluding remand would frustrate intent of TCA to provide relief on an expedited
basis).
14
Regardless of whether the relief afforded to Appellees was mandamus or
injunctive, in light of the developing case law holding injunctive relief best serves
the TCA’s explicit goal of expediting resolution of this type of action, see 47
U.S.C. § 332(c)(7)(B)(v), we conclude the district court did not abuse its discretion
by ordering Appellant to approve Appellee’s application for conditional use
approval.
25
was not clearly erroneous. Additionally, the district court did not abuse its

discretion by ordering Appellant to approve Appellee’s application for conditional

use approval.

III. CONCLUSION

Under § 704(a), the final action which triggers the running of the 30 days

within which an aggrieved party may commence an action is a state or local

government’s written denial of the party’s request to place, construct or modify a

personal wireless service facility. Because Appellee’s action was filed within 30

days of the Board’s written denial, it was timely. Moreover, although aesthetic

concerns may support a denial of a party’s request to place, construct or modify a

personal wireless service facility if evidence of the facility’s visual intrusiveness is

substantial, the generalized concerns of citizens in this case did not amount to

substantial evidence. The Board’s decision, therefore, was unsupported by

substantial evidence, and Appellee was entitled to relief. Accordingly, we affirm.

AFFIRMED.

26