Omnipoint Holdings, Incorporated, Doing Business as Voicestream Wireless v. City of Southfield Southfield City Council

REEVES, District Judge,

dissenting.

Because I believe the majority has misconstrued the holding in New Par v. City *608of Saginaw, 301 F.3d 390 (6th Cir.2002), I respectfully dissent. In New Par, this court held that

for a decision by a State or local government or instrumentality thereof denying a request to place, construct or modify personal wireless service facilities to be “in writing” for the purposes of 47 U.S.C. § 332(c)(7)(B)(iii), it must (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.

New Par, 301 F.3d at 395-96. Here, there is no debate that the City Council met the second and third requirements. Only the first requirement is disputed.

New Par did not specifically discuss the “separate writing” requirement. Instead, it adopted this requirement from Southwestern Bell, 244 F.3d 51 (1st Cir.2001). In Southwestern Bell, the Court held that “[e]ven where the record reflects unmistakably the Board’s reasons for denying a permit, allowing the written record to serve as the writing would contradict the language of the Act. The TCA distinguishes between a written denial and a written record, thus indicating that the record cannot be a substitute for a separate denial.” Southwestern Bell, 244 F.3d at 60 (emphasis added).

The majority notes that “[t]he primary purpose of the separate writing requirement is to allow a reviewing court to focus with precision on the action that was taken and the reasons supporting such action. The council resolution at issue here would afford a reviewing court that opportunity.” While I agree with this statement, I also believe that the “separate writing” requirement’s purpose is to greatly simplify matters for both the zoning applicant and the court. It forces the city to put forth its reasons in a separate document, preventing the parties from having to wade through voluminous meeting minutes to extract the reasons for the denial.1 In many situations, the meeting minutes might not be available to the wireless provider for some time. The desire to simplify and expedite the process are extremely relevant, given that the TCA provides wireless providers only 30 days in which to bring suit.

Further, Southwestern Bell’s statutory construction of the TCA is reasonable. With only a 30-day period to institute an action, Congress most likely wished to streamline the city-review process by forcing city councils and zoning boards to issue separate decisions that make it possible for the zoning applicant to have a separate writing which clearly establishes a denial (supported by reasons for the denial), rather than having the denial buried in meeting minutes. This procedure is efficient, it is extremely easy for the city to satisfy, and I believe it is the process mandated by New Par.

In concluding that the City Council’s actions satisfy the “separate writing requirement,” the majority argues that when the Council passed the resolution denying VoiceStream’s special use permit, the resolution was actually separate from the written record, even though the decision was contained within the meeting minutes. *609The majority distinguishes the “minutes” from the “record,” contending that the resolution passed by the City is not a part of the record, even though it is contained within the meeting minutes. It argues that the written record only includes the discussion of the resolution, but not the resolution itself.

With all due respect, I disagree with this analysis because I believe the terms “written record” and “meeting minutes” are synonymous. The meeting minutes are the written record. Anything contained in those minutes is part of the written record. Therefore, the resolutions passed by the Council are part of the written record because they are contained in the meeting minutes. Even if one accepts the proposition that a resolution contained in the minutes is not a part of the written record, the resolution in this case was not a written decision separate from the written record. It was contained in the meeting minutes that included the written record. It was not separate from it.

The majority’s argument significantly narrows the “separate writing requirement” of New Par. Using the majority’s logic, the only time the “separate writing” requirement would matter is in a situation where the reasons for denial are contained in the discussion of the resolution but not in the resolution itself. Such reasoning allows a city council or zoning board to simply issue its decision through its meeting minutes. I do not believe that New Par or the TCA authorize this result.

In Laurence Wolf, this court found that meeting minutes were not separate from the written record when they discussed other board matters. Here, the minutes discussed many other matters. Indeed, the denial in Laurence Wolf was issued in the same fashion as the denial in this ease:

[t]he board did not issue any written decision denying the variance request. Instead, it reflected its denial in the meeting minutes. The minutes stated the Board based its decision on “... changes to the character of the neighborhood which would result from construction of the proposed structure, no hardship being justified by the petitioner and the problem being self-created.”

Laurence Wolf 61 Fed.Appx. at 208.

The panel in Laurence Wolf held that these minutes do not “satisfy the ‘in writing’ test because they were not separate from the meeting’s written record concerning other Board issues.” Id. at 211. Moreover, the writing that was held to be “separate from the written record” in Southwestern Bell was truly separate: the board voted at its meeting to deny the request, then two days later filed a separate written decision. Southwestern Bell, 244 F.3d at 56.

Here, I believe that the City Council’s issuance of its decision did not comply with New Par. I would include within the definition of “written record” any resolutions that are only memorialized in the minutes and not issued in a separate writing. Thus, I would not consider the board’s resolution, contained within the meeting minutes, to be a decision “separate from the written record.” When the board formally approved the minutes months later, that writing was separate from the written record, however, it did not include any reasons for the denial.

The City Council seeks to rely on the brief 30-day statute of limitations to prevent judicial review of its denial of VoiceS-tream’s special use permit. The requirements of New Par maké sense in the context of a 30-day statute of limitations and they should be strictly enforced when determining when to commence- the TCA’s limitations period. New Par forces a local board that- denies a wireless provider’s *610zoning variance to issue a separate decision, supported by reasons for the denial. Doing so greatly eases the review process for the wireless provider, burdened by a 30-day statute of limitations, at little or no expense to the local board. Such requirements also simplify judicial review. Because I believe that the City Council must strictly comply with the requirements of New Par when attempting to bar litigation via a statute of limitations claim, I respectfully dissent from the majority’s conclusion that the City Council’s decision was “separate from the written record.”

In all other respects, I agree with the majority’s opinion.

. For this reason, the logic from Laurence Wolf Capital Mgmt. Trust v. City of Ferndale, 61 Fed. Appx. 204, 211 (6th Cir.2003), discussed infra, is illustrative because there the court noted that meeting minutes which discuss only the zoning variance and discuss no other matters could be "separate from the written record.” In such a situation, there is less concern over the decision being buried in the minutes because the minutes discuss only the zoning variance.