           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    Omnipoint Holdings v.                        No. 02-1713
        ELECTRONIC CITATION: 2004 FED App. 0023P (6th Cir.)                  City of Southfield, et al.
                    File Name: 04a0023p.06
                                                                                            _________________
UNITED STATES COURT OF APPEALS                                                                   COUNSEL
                  FOR THE SIXTH CIRCUIT                                 ARGUED: Marc L. Newman, MILLER SHEA P.C., Troy,
                    _________________                                   Michigan, for Appellant. Gerald A. Fisher, SECREST,
                                                                        WARDLE, LYNCH, HAMPTON, TRUEX & MORLEY,
 OMNIPOINT HOLDINGS,               X                                    Farmington Hills, Michigan, for Appellees. ON BRIEF:
 INCORPORATED , doing               -                                   Marc L. Newman, E. Powell Miller, MILLER SHEA P.C.,
 business as VoiceStream            -                                   Troy, Michigan, for Appellant. Gerald A. Fisher, SECREST,
                                    -  No. 02-1713                      WARDLE, LYNCH, HAMPTON, TRUEX & MORLEY,
 Wireless,                          -                                   Farmington Hills, Michigan, for Appellees.
            Plaintiff-Appellant,     >
                                    ,                                      GUY, J., delivered the opinion of the court, in which
                                    -
            v.                                                          GILMAN, J., joined. REEVES, D. J. (pp. 13-17), delivered
                                    -                                   a separate dissenting opinion.
                                    -
 CITY OF SOUTHFIELD ;               -                                                       _________________
 SOUTHFIELD CITY COUNCIL ,          -
        Defendants-Appellees. -                                                                 OPINION
                                    -                                                       _________________
                                   N
       Appeal from the United States District Court                        RALPH B. GUY, JR., Circuit Judge.                  Plaintiff,
      for the Eastern District of Michigan at Detroit.                  VoiceStream Wireless (VoiceStream), appeals from the grant
    No. 01-72482—Denise Page Hood, District Judge.                      of summary judgment to defendants, the City of Southfield
                                                                        and its City Council, in this action alleging violations of the
                   Argued: December 2, 2003                             Telecommunications Act of 1996, 47 U.S.C. § 332, and
                                                                        claims under 42 U.S.C. § 1983. The district judge found that
             Decided and Filed: January 15, 2004                        the Telecommunications Act claims were barred by the 30-
                                                                        day statute of limitations for instituting suit, and that the
  Before: GUY and GILMAN, Circuit Judges; REEVES,                       plaintiff did not have standing to raise the issues asserted in
                   District Judge.*                                     its § 1983 count. On appeal it appears that VoiceStream only
                                                                        raises issues that arise under the Telecommunications Act (the
                                                                        Act). Our review of the record and applicable law convinces
                                                                        us that summary judgment for the defendants was
                                                                        appropriately granted and we affirm, although on grounds
    *
                                                                        somewhat different than did the trial judge.
     The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.

                                 1
No. 02-1713                      Omnipoint Holdings v.       3    4     Omnipoint Holdings v.                        No. 02-1713
                                City of Southfield, et al.              City of Southfield, et al.

                              I.                                  forward, however, because the Martin property was still their
                                                                  first choice and the terms the City proposed as far as lease
  VoiceStream is a provider of personal communications            rental was concerned required a greater financial outlay than
systems and serves customers in southeastern Michigan. In         was acceptable to VoiceStream. The matter was further
order to provide this service, antenna towers are needed at       complicated by the fact that the park property has been
various locations. Plaintiff sought to build a 150-foot           deeded to the City with a use restriction, and that restriction
monopole antenna tower in Southfield to cover a gap in its        would have to be waived by the grantors before a tower could
coverage. On July 12, 2000, plaintiff submitted an                be constructed.
application seeking a special use permit to build a tower in
the rear yard of a residence owned by Stuart Martin. This           After the Council denied the special use application for the
property was located in an area zoned R-E Single Family           Martin property, the plaintiff again began to pursue the
Residential, which was developed with low-rise residential        possibility of using the park property. Another special use
homes. Under Southfield’s ordinances, such an application         application was filed and a hearing was set before the Plan
goes first before the Planning Commission and then before         Commission. Before this hearing could be held, the Plan
the City Council. At the conclusion of its hearing on October     Commission became aware that the City Council would not
18, 2000, the Planning Commission voted 5-0 to deny the           approve a sale or lease of the park property, so the hearing
application.                                                      was cancelled by letter dated June 4, 2001. On July 3, 2001,
                                                                  this lawsuit was filed.
   The City Council has a Site Plan Commission which
considers applications of this nature before they come before                                    II.
the full Council, and this committee discussed with plaintiff
the possibility of placing the tower at other locations in the      Because these towers are often not welcome, but need to be
immediate area. For a variety of reasons, the plaintiff did not   erected to support an efficient nationwide communication
find any of the other locations to be acceptable. The matter      system, the Act affords certain protections to companies like
then went before the City Council on February 26, 2001.           plaintiff and provides that the governmental units just cannot
After a hearing, the Council voted 7-0 to deny the application,   deny these applications out of hand, but must make a
listing eight reasons for the denial. The action of the Council   reasoned and reasonable denial and give reasons in writing for
became final when the minutes of the February 26 meeting          the denial. The City of Southfield has an ordinance that deals
were approved on April 9, 2001.                                   with this type of application and the procedures to be
                                                                  followed. For whatever reason, the City has a number of
  Although VoiceStream had rejected initially the other           these towers within the city limits and, in fact, has granted all
locations suggested by the City, it did explore with              of the previous 23 applications submitted for similar towers.
representatives of the City the possibility of locating the       Although the record is silent on this point, one can assume
tower in a nearby City park. These discussions were ongoing       that most, if not all, of these towers were not placed in
before the final vote of denial by the Council took place. At     residential districts.
one point in November of 2000, the city planner sent a letter
to plaintiff’s attorney setting forth proposed lease terms for      The ordinance governing tower applications sets forth
the City property. VoiceStream was reluctant to move              certain criteria for the granting or denial of permit
No. 02-1713                            Omnipoint Holdings v.             5   6      Omnipoint Holdings v.                                    No. 02-1713
                                      City of Southfield, et al.                    City of Southfield, et al.

applications. Before acting, the Council held a hearing and
heard from concerned residents as well as two “experts”; one
being the City Planner and the other being an outside                             Section 5.58D(1)(e) of the City’s Zoning Ordinance.
consultant the City used when applications of this nature were
                                                                             4.   The applicant has not demonstrated that there is no location
before the Council. The reasons the City gave for denial are,                     outside of a single fam ily residential district for the proposed one
in general, that the residential character of the neighborhood                    hundred fifty foot (15 0') high mono pole tower which can
would be harmed by a tower of this nature, property values                        reasonabl[y] meet its coverage and/or capacity needs, contrary
would decline, and the plaintiff had not complied with the                        to Section 5.58F(1) of the City’s Zoning Ordinance.
city ordinance in sufficient detail to show the technical
                                                                             5.   The subm itted Site Plan sho ws a one hund red fifty fo ot (150 ')
necessity for having to place this tower at or near the                           high monopole tower design which is not compatible with the
locations at issue here.1                                                         existing character of the proposed site, the neighborhood, or the
                                                                                  general area, contrary to Section 5.58F(2) of the City’s Zoning
                                                                                  Ordinance.
     1
                                                                             6.   The submitted Special Use and Site Plan does not meet the
Mo tion by Condino supported by Frasier.                                          requirements of Se ctions 5 .58(F)(3)(a) thro ugh (f) o f the City’s
                                                                                  Zoning Ordinance because there is available for this use, both a
RESOLVED : That GP:1074/SP:1102, the Special Use and Site Plan                    public school site and a municipal park located on Inkster Road,
Review Request of Voice Stream Wireless to construct a 150 foot high              a half mile north of the site. Ad ditiona lly, there is a religious site
mon opo le communications tower and equipment shelter on part of                  located at the southwest corner of Ten Mile and Inkster Roads
Sidwell Parcel 2419-351-00 7, located at 27390 T en Mile Road , at the            and a large, vacant tract of land/open space directly south of the
northeast corner of T en M ile and Inkster Roads, site plan dated February        proposed site which could accommodate this use.
15, 2001, and received by the Planning Department on February 20, 2001,
be den ied for the following reaso ns:                                       7.   There are currently twenty three (23) freestanding wireless
                                                                                  communication towers with collocato rs located within the City
1.   The submitted Site Plan and Special Use Request for a one                    which provide very adequate wireless communication services
     hundred fifty foot (150') high monopole tower to be located in               and coverage in the City in accordance with the purpose and
     the rear yard of a single family home is not harmonious with the             intent of the City’s Wireless Communications Facilities
     surrounding area, which is low rise, single family residential on            Ordinance, as outlined in Section 5.58A o f the City’s Zoning
     all sides and would be demonstrably injurious to existing and                Ordinance.
     prop osed neighborhoods and detrimental to the public welfare,
     contrary to Section 5.58D(1)(a) and D(1)(b) of the City’s Zoning        8.   The subm itted Site Plan adhe res to the applicant’s overall tower
     Ordinance.                                                                   system plan for the Detroit metropolitan area which has
                                                                                  app arently been designated in a manner, unlike the design of any
2.   The applicant has not demonstrated a justification for the                   other wireless company with a tower located in Southfield, that
     propo sed one hundred fifty foot (150') height of the proposed               applicant claims requires the location of the proposed tower in
     mon opo le tower nor provided an evaluation of alternative                   the rear yard of a single family home rather than modifying the
     designs which might result in a lower height, contrary to Section            system plan to allow for a location that will not adversely impact
     5.58D(1)(d) of the City’s Zoning Ordinance.                                  an exclusively residential area, contrary to Section 5.58D(1)(a)
                                                                                  and D(1)(b) of the City’s Zoning Ordinance.
3.   The applicant has not demonstrated why other sites
     recommended by the C ity for the proposed one hundred fifty             A roll call vote was taken.
     foot (150') high monopole tower are no t appropriate, contrary to       Jordan, yea[;] Lantz, yea; Frasier, yea; Condino, yea; Lawrence, yea;
No. 02-1713                            Omnipoint Holdings v.              7    8       Omnipoint Holdings v.                                 No. 02-1713
                                      City of Southfield, et al.                       City of Southfield, et al.

                                                                                 Assuming, arguendo, that New Par applies retroactively,
                                                                               we conclude the actions taken by the Southfield City Council
                                   III.                                        comply with the requirements that are set forth for a valid
                                                                               “decision in writing.” The council resolution clearly lists the
  The Act provides that a person adversely affected by a final                 reasons for the denial and offers an explanation in support of
action or failure to act by a State or local government may file               those reasons. Whether the reasons set forth are sufficient is
an action within 30 days of the local government’s final                       always a matter that an unsuccessful applicant can challenge
action or failure to act. 42 U.S.C. § 332(c)(7)(B)(v). The trial               with a timely filed court action.3
judge held with regard to the Martin site, that defendants’
“final action” which started the statute of limitations running                   The mandate that the decision must “be separate from the
was the issuance and approval of the minutes of the February                   written record” requires additional exploration. To begin
26, 2001 Council meeting. This occurred on April 9, 2001.                      with, there is no guidance in New Par as to what constitutes
Since suit was not filed within 30 days of the April date, the                 the written record. The phrase “separate from the written
district judge dismissed that portion of plaintiff’s complaint                 record” was imported from the case of Southwestern Bell
that related to the Martin property.                                           Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001)
                                                                               (Bell). In Bell the court had occasion to review the decision
  Plaintiff offers several reasons why the district court erred                of a zoning board of appeals denying a special use permit for
in applying the statute of limitations, but relies most heavily                a tower. After the zoning board hearing, the board issued a
on a decision from this court decided after this matter was                    short and simple decision indicating, at least in part, the
dismissed in the trial court. In New Par v. City of Saginaw,                   reasons for the denial. The First Circuit not only found that
301 F.3d 390, 395-96 (6th Cir. 2002), we held, inter alia, that                this met the “in writing” requirement, but the “substantial
in order to meet the “decision . . . in writing” requirement of                evidence” requirement as well. Despite the fact that the TCA
47 U.S.C. § 332(c)(7)(B)(iii), a governmental unit’s decision                  makes no mention of the writing being in a separate
must (1) be separate from the written record, (2) describe the                 document, the court also stated: “We conclude, therefore,
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.2


                                                                                   3
                                                                                     As is often the case, when a decision sets forth new requirements for
                                                                               future guidance, the context for the decision is made up of the facts before
Brateman, yea; Samona, yea.                                                    the court at that time. It is next to im possible to set forth a “one size fits
The resolution was ap proved 7 yeas, 0 na ys.                                  all” set of standards, and so the requirements when next applied must take
    2
                                                                               into account the new context. For example, requirements two and three
      This section provides that: “Any decision by a State or local            in New Par may overlap. If a city turned down a tower application
government . . . to deny a request to p lace, co nstruct, or modify personal   because the height of the tower would be a hazard to airplanes landing at
wireless service facilities shall be in writing and supported by substantial   a nearby airport, the statement of the reason w ould also be the
evidence contained in a written record.” Id.                                   explanation.
No. 02-1713                              Omnipoint Holdings v.               9    10       Omnipoint Holdings v.                             No. 02-1713
                                        City of Southfield, et al.                         City of Southfield, et al.

that the TCA requires local boards to issue a written denial                      requirement is to allow a reviewing court to focus with
separate from the written record.”4                                               precision on the action that was taken and the reasons
                                                                                  supporting such action. The council resolution at issue here
  The factual situation in Bell is different from that in this                    would afford a reviewing court that opportunity.6
case. The action being reviewed in Bell, as it was in New
Par, is that of the zoning board of appeals. The action being                        In this regard, the assertion in the dissent that allowing the
reviewed here is that of the city council. Under the charter of                   council resolution to satisfy the separate writing requirement
the City of Southfield the Council takes formal action by                         will require applicants “to wade through voluminous meeting
passing a resolution. Just as a court speaks through its orders,                  minutes to extract the reasons for the denial” does not
the Southfield City Council speaks through its resolutions.                       comport with the record in this case. Here, VoiceStream had
This formal resolution is a writing separate from the hearing                     a representative at the council meeting where the final action
record. In fact, in this case there are two or arguably three                     was taken and knew the application had been denied. A copy
hearing records. There was the hearing before the City Plan                       of this particular council resolution separate from any other
Commission, the meeting with the Site Plan Commission, and                        resolutions passed at the same meeting was presumably
the hearing before the City Council. Whatever records were                        obtainable from the City Clerk in a matter of hours after the
made of those hearings are separate from the resolution                           action was taken. Indeed, if litigation was contemplated, the
passed by the City Council, although the resolution itself does                   council resolution is the only document which would
contain the reasons for the denial as is required by New Par.5                    definitively show the formal action taken by the council.
Although the minutes of a council meeting will encompass all                      Additionally unlike a letter or some other means of
the matters considered by the council at that meeting, each                       notification, there is a date certain when a council resolution
resolution deals with only one discrete subject. In our view                      becomes effective. The result in this case was that the
this is sufficient to meet the “separate writing” requirement of                  applicant had considerably more time than 30 days from the
New Par. The primary purpose of the separate writing                              date it actually learned of the denial to institute suit, since the
                                                                                  council resolution did not become effective on the date of
                                                                                  passage. We can imagine no other document that would be
                                                                                  easier to work with or more useful or informative to an
    4
      In Lau rence Wo lf Cap ital Mana gem ent Trust v. City of Fe rndale,
2003 W L 18 755 54 (6th Cir. April 10, 2003) (unpublished disp osition), a
case decided after New Par, the panel concluded that a set of zoning board
of appeals minutes met the “in writing” requirement of the TCA, although               6
                                                                                        In Laurence Wo lf, the court, in rejecting one set of zoning board
the pane l ultimately decide d this writing was an impermissible retroactive      minutes as meeting the separate writing requirement, stated: “The
cure.                                                                             January 18, 2000, meeting record does not satisfy the ‘in writing’ test
    5
                                                                                  because it is not separate from the meeting’s written record concerning
       In this regard the “record” is not to be confused with the type of         other Bo ard issues.” 2003 W L 1875 554 at **6. We are not privy to the
verbatim record made in a court of rec ord. Bell is enlighten ing in this         record being reviewed in Laurence Wolf; however, we reject the concept
regard: “Passage of the T CA did no t alter the reality that the local boards     that a resolution in meeting m inutes will never meet the separate writing
that administer the zoning laws are primarily staffed by laypeople.               requireme nt, if it otherwise allows m eaning ful judicial review , simply
Though their decisions are now subject to review under the TCA, it is not         because the minu tes con tained other d ispositions or resolutions dealing
realistic to expe ct highly detailed findings of fact and conclusions o f law.”   with other subjects. In any event, since Lau rence Wo lf is unpublished , it
Id. at 59.                                                                        is not binding p reced ent.
No. 02-1713                         Omnipoint Holdings v.          11    12   Omnipoint Holdings v.                       No. 02-1713
                                   City of Southfield, et al.                 City of Southfield, et al.

applicant or to a reviewing court than the resolution which              district court concluded that since plaintiff had no property
embodies the reasons for denial.                                         interest in this property, it had no standing to bring suit. In
                                                                         our view, plaintiff, under the Act, may have had standing, but
  Since we conclude that the resolution of the city council              we nonetheless affirm the judgment for defendants on this
meets the New Par standards, the 30-day clock started                    issue for a much more fundamental reason. The City owned
running when the resolution became final on April 9, 2001.               this deed-restricted property, and the plaintiff simply cannot
                                                                         compel the City to sell or lease a portion of the park if it
   In order to avoid the consequences of its late filing, plaintiff      chooses not to. Although plaintiff argues that it had a
claims that its application really was for permission to erect           “contract to make a contract” based upon the negotiations that
a tower somewhere within its “search ring” which would have              had transpired between the parties, we find this argument
included areas adjacent to or near the Martin property. Since            totally lacking in merit. Only the City Council through
the plaintiff was still talking to the City about the possibility        formal action, after the grantors had agreed to waive the deed
of the public park site, plaintiff contends that there was no            restriction, could have authorized this lease. This simply
denial of its “search ring” application until it got the letter          never occurred.
from the defendant indicating it would not sell or lease any of
the park property. There are several problems with this                    AFFIRMED.
“created after the fact” argument, but we need look no further
than the special use application first submitted which clearly
involves only the Martin property. Like the distict judge, we
can understand that the plaintiff might have felt some
reluctance to start a lawsuit while negotiations were ongoing
on the park property. We don’t see that as an insurmountable
problem, however, because the City, having granted 23
previous tower applications, was familiar with the Act and
would have understood if the plaintiff had just come to them
and said, “we have to start this suit to protect our right of
action. It’s not intended as a hostile or unfriendly act, and we
still want to work this out with you.”7
                                 IV.
  Plaintiff also attempts to construct a cause of action over
the defendants’ failure to lease a portion of the City-owned
park property for placement of the proposed tower. The


    7
     Voicestream also co uld have asked the City to agree to waive the
30-day period o f limitations.
No. 02-1713                      Omnipoint Holdings v.       13   14       Omnipoint Holdings v.                             No. 02-1713
                                City of Southfield, et al.                 City of Southfield, et al.

                      ______________                              focus with precision on the action that was taken and the
                                                                  reasons supporting such action. The council resolution at
                         DISSENT                                  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
  REEVES, District Judge, dissenting. Because I believe the       simplify matters for both the zoning applicant and the court.
majority has misconstrued the holding in New Par v. City of       It forces the city to put forth its reasons in a separate
Saginaw, 301 F.3d 390 (6th Cir. 2002), I respectfully dissent.    document, preventing the parties from having to wade
In New Par, this court held that                                  through voluminous meeting minutes to extract the reasons
                                                                  for the denial.1 In many situations, the meeting minutes
  for a decision by a State or local government or                might not be available to the wireless provider for some time.
  instrumentality thereof denying a request to place,             The desire to simplify and expedite the process are extremely
  construct or modify personal wireless service facilities to     relevant, given that the TCA provides wireless providers only
  be “in writing” for the purposes of 47 U.S.C.                   30 days in which to bring suit.
  § 332(c)(7)(B)(iii), it must (1) be separate from the
  written record; (2) describe the reasons for the denial;           Further, Southwestern Bell’s statutory construction of the
  and (3) contain a sufficient explanation of the reasons for     TCA is reasonable. With only a 30-day period to institute an
  the denial to allow a reviewing court to evaluate the           action, Congress most likely wished to streamline the city-
  evidence in the record that supports those reasons.             review process by forcing city councils and zoning boards to
                                                                  issue separate decisions that make it possible for the zoning
New Par, 301 F.3d at 395-96. Here, there is no debate that        applicant to have a separate writing which clearly establishes
the City Council met the second and third requirements. Only      a denial (supported by reasons for the denial), rather than
the first requirement is disputed.                                having the denial buried in meeting minutes. This procedure
                                                                  is efficient, it is extremely easy for the city to satisfy, and I
  New Par did not specifically discuss the “separate writing”     believe it is the process mandated by New Par.
requirement. Instead, it adopted this requirement from
Southwestern Bell, 244 F.3d 51 (1st Cir. 2001). In                  In concluding that the City Council’s actions satisfy the
Southwestern Bell, the Court held that “[e]ven where the          “separate writing requirement,” the majority argues that when
record reflects unmistakably the Board’s reasons for denying      the Council passed the resolution denying VoiceStream’s
a permit, allowing the written record to serve as the writing     special use permit, the resolution was actually separate from
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           1
                                                                        For this reason, the logic from Laurence W olf Cap ital Mgm t. Trust
separate denial.” Southwestern Bell, 244 F.3d at 60               v. City of Fern dale, 61 Fed. Appx. 204, 211 (6th Cir. 2 003), discussed
(emphasis added).                                                 infra, is illustrative because there the court noted that meeting minutes
                                                                  which discuss only the zoning variance and discuss no other m atters co uld
  The majority notes that “[t]he primary purpose of the           be “separate from the written record.” In such a situation, there is less
separate writing requirement is to allow a reviewing court to     concern over the decision being buried in the minutes because the minutes
                                                                  discuss only the zoning variance.
No. 02-1713                      Omnipoint Holdings v.       15    16   Omnipoint Holdings v.                       No. 02-1713
                                City of Southfield, et al.              City of Southfield, et al.

the written record, even though the decision was contained           [t]he board did not issue any written decision denying the
within the meeting minutes. The majority distinguishes the           variance request. Instead, it reflected its denial in the
“minutes” from the “record,” contending that the resolution          meeting minutes. The minutes stated the Board based its
passed by the City is not a part of the record, even though it       decision on “. . . changes to the character of the
is contained within the meeting minutes. It argues that the          neighborhood which would result from construction of
written record only includes the discussion of the resolution,       the proposed structure, no hardship being justified by the
but not the resolution itself.                                       petitioner and the problem being self-created.”
   With all due respect, I disagree with this analysis because     Laurence Wolf, 61 Fed. Appx. at 208.
I believe the terms “written record” and “meeting minutes”
are synonymous. The meeting minutes are the written record.           The panel in Laurence Wolf held that these minutes do not
Anything contained in those minutes is part of the written         “satisfy the ‘in writing’ test because they were not separate
record. Therefore, the resolutions passed by the Council are       from the meeting’s written record concerning other Board
part of the written record because they are contained in the       issues.” Id. at 211. Moreover, the writing that was held to be
meeting minutes. Even if one accepts the proposition that a        “separate from the written record” in Southwestern Bell was
resolution contained in the minutes is not a part of the written   truly separate: the board voted at its meeting to deny the
record, the resolution in this case was not a written decision     request, then two days later filed a separate written decision.
separate from the written record. It was contained in the          Southwestern Bell, 244 F.3d at 56.
meeting minutes that included the written record. It was not
separate from it.                                                    Here, I believe that the City Council’s issuance of its
                                                                   decision did not comply with New Par. I would include
   The majority’s argument significantly narrows the               within the definition of “written record” any resolutions that
“separate writing requirement” of New Par. Using the               are only memorialized in the minutes and not issued in a
majority’s logic, the only time the “separate writing”             separate writing. Thus, I would not consider the board’s
requirement would matter is in a situation where the reasons       resolution, contained within the meeting minutes, to be a
for denial are contained in the discussion of the resolution but   decision “separate from the written record.” When the board
not in the resolution itself. Such reasoning allows a city         formally approved the minutes months later, that writing was
council or zoning board to simply issue its decision through       separate from the written record, however, it did not include
its meeting minutes. I do not believe that New Par or the          any reasons for the denial.
TCA authorize this result.
                                                                     The City Council seeks to rely on the brief 30-day statute
   In Laurence Wolf, this court found that meeting minutes         of limitations to prevent judicial review of its denial of
were not separate from the written record when they                VoiceStream’s special use permit. The requirements of New
discussed other board matters. Here, the minutes discussed         Par make sense in the context of a 30-day statute of
many other matters. Indeed, the denial in Laurence Wolf was        limitations and they should be strictly enforced when
issued in the same fashion as the denial in this case:             determining when to commence the TCA’s limitations period.
                                                                   New Par forces a local board that denies a wireless provider’s
                                                                   zoning variance to issue a separate decision, supported by
No. 02-1713                        Omnipoint Holdings v.        17
                                  City of Southfield, et al.

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.
