In propitious timing, the Supreme Court issued a decision addressing administative appeal questions similar to those addressed in the Maine SJC's decision in Beckford, upon which I blogged in my last entry. (Is your 80B clock ticking?). The decision is T-Mobile South, LLC v. City of Roswell, Georgia.
T-Mobile relates to the Telecommunications Act, which allows applicants for local permits to build towers to challenge to a local denial in federal court. The TCA – like Maine law - provides that any decision to deny a request to build "shall be in writing and supported by substantial evidence contained in a written record." There is a 30-day clock to file the federal challenge.
The municipality voted to deny the application after a hearing and deliberations on day X. Two days later, it sent a very short letter to the applicant that said the application was denied, and that minutes could be obtained of the hearing from the town clerk. The detailed written minutes of the hearing, however, were not approved until 26 days later. The applicant filed suit 3 days later, 29 days after the denial.
The Court (6:3, opinion by Justice Sotomayor) held: (1) the decision had to be in writing; (2) the reasons for the denial don't have to be in the written notice of denial itself, but (3) there does have to be a written explanation of the reasons for the denial provided sufficient to permit judicial review; (4) that written explanation must be issued "essentially contemporaneously" with the denial; and (5) 26 days after the vote was too late. The Court remanded to the lower court to determine the proper remedy.
On the timing issue, the Court said:
"We hasten to add that a locality cannot stymie or burden the judicial review contemplated by the statute by delaying the release of its reasons for a substantial time after it conveys its written denial. The statute provides that an entity adversely affected by a locality's decision may seek judicial review within 30 days of the decision. [TCA cite]. Because an entity may not be able to make a condsidered decision whether to seek judicial review without knowing the reasons for the denial of its application, and because a court cannot review the denial without knowing the locality's reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial."
Similar to the SJC in Beckford, the Court said that it could not hold that the 30-day challenge clock doesn't begin until the written explanation is provided, because that would require rewriting the statutory text. (The TCA clock is triggered by "any final action or failure to act", and the Court said the "final action" was "the written notice of denial," not the subsequent issuance of reasons explaning the denial.)
There are some differences between this situation and that in Beckford, but some striking commonalities. The big takeaway, I think, is the Court's interpretation of the statute providing the 30-day clock as including a requirement to provide the written expanation "essentially contemporaneously" with the ruling, for reasons I noted in my blog entry – you need to know the reasons before filing suit, and the court needs to know them as well.
If an analogous requirement is read into Maine's 45-day statutory clock, then this would mean that the written decison must issue within a few days of the vote. That is not routine in Maine, as I understand it, and it's going to be pretty tricky to make this happen unless the board is presented with a draft opinion in the hearing at which they vote and sign off on the opinion then, revising and marking it up before they go home.
