IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
September 29, 2008
USCOC OF GREATER MISSOURI, LLC, PLAINTIFF,
CITY OF BELLEVILLE, ILLINOIS, AN ILLINOIS POLITICAL SUBDIVISION, DEFENDANT.
The opinion of the court was delivered by: Stiehl, District Judge
MEMORANDUM & ORDER
Before the Court is defendant's motion to dismiss and to strike (Doc. 13), to which plaintiff has filed a response (Doc. 16), and defendant a reply (Doc. 21). Defendant seeks to dismiss Counts VIII and IX of the complaint, and to strike paragraphs 32, 38, 47, and 57, as well as plaintiff's request for attorney fees. Subsequent to filing these motions, the parties stipulated to dismissal without prejudice of Counts IV through IX of the complaint (Doc. 27). Accordingly, the Court DISMISSES Counts IV through IX of the complaint. Because defendant's motion to dismiss and to strike (Doc. 13) addresses claims and allegations made in Counts IV through IX of the complaint, that motion is DENIED as moot.
Also before the Court is plaintiff's motion for partial summary judgment on Count I (Doc. 5), to which defendant has filed a response (Doc. 17), and plaintiff a reply (Doc. 19). Plaintiff asserts that defendant violated the Federal Telecommunications Act of 1996 (TCA) by denying plaintiff's special use permit application and its variance application without (1) providing its decision in writing and (2) basing its decision on substantial evidence and that it is entitled to judgment as a matter of law on this claim. 47 U.S.C. § 332(c)(7)(B)(iii).*fn1
Plaintiff, a wireless telecommunications services provider, submitted permit applications to defendant for the purpose of erecting a telecommunications tower on land located at 4300 West Main Street in Belleville, Illinois. Defendant's Zoning Board of Appeals (ZBA) recommended that defendant's City Council (CC) deny plaintiff's application and the CC formally voted to deny the applications in July of 2007. Count I alleges that defendant violated 47 U.S.C. § 332(c)(7)(B)(iii) by failing to deny plaintiff's application in writing and without the support of substantial evidence.
Plaintiff seeks partial summary judgment on Count I and argues that defendant violated the standards set forth in the TCA by denying plaintiff telecommunications tower permits. A district court will grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c): see also Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as a matter of law. See, Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999) (citing Celotex, 477 U.S. at 323).
I. Denial "In Writing"
Plaintiff argues that defendant failed to provide a denial "in writing" pursuant to 47 U.S.C. § 332(c)(7)(B)(iii). Although the Seventh Circuit has not yet determined what type of writing satisfies the statute, the Court finds persuasive the Fourth Circuit's "plain meaning" approach.*fn2 Applying the plain meaning approach to the facts in this case, the Court FINDS that the transcript from the ZBA hearing and the minutes from the CC meeting create a genuine issue of material fact as to whether defendant satisfied the in writing requirement of 47 U.S.C. § 332(c)(7)(B)(iii). Accordingly, plaintiff has not established that it is entitled to summary judgment on this issue, and the motion of this ground is DENIED.*fn3
II. Denial Supported by Substantial Evidence
In the alternative, plaintiff seeks summary judgment on Count I on the grounds that defendant's denials were not supported by substantial evidence. Plaintiff attacks the CC meeting minutes for not providing "any reasons" for defendant's denials, but this argument clearly overlooks the evidence presented in the ZBA hearing transcript. The Court FINDS that the evidence presented in the transcript creates a genuine issue of material fact as to whether defendant's denial were supported by substantial evidence. Therefore, plaintiff has not established that it is entitled to summary judgment on this ground, and plaintiff's motion for summary judgment is DENIED.
Upon review of the record, the Court DISMISSES without prejudice Counts IV through IX of the complaint, as the parties have stipulated to dismissal of those claims. Therefore, the Court DENIES defendant's motion to dismiss and to strike (Doc. 13) as moot. Finally, the Court DENIES plaintiff's motion for partial summary judgment (Doc. 5) on all grounds raised.
IT IS SO ORDERED.
WILLIAM D. STIEHL District Judge