OMNIPOINT HOLDINGS, INCORPORATED, doing business as VoiceStream Wireless v. City of Southfield; Southfield City Council

*The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0023P (6th Cir.)
File Name: 04a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
OMNIPOINT HOLDINGS,
INCORPORATED, doing
business as VoiceStream
Wireless,
Plaintiff-Appellant,
v.
CITY OF SOUTHFIELD;
SOUTHFIELD CITY COUNCIL,
Defendants-Appellees.
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No. 02-1713
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-72482—Denise Page Hood, District Judge.
Argued: December 2, 2003
Decided and Filed: January 15, 2004
Before: GUY and GILMAN, Circuit Judges; REEVES,
District Judge.*
2 Omnipoint Holdings v.
City of Southfield, et al.
No. 02-1713
_________________
COUNSEL
ARGUED: Marc L. Newman, MILLER SHEA P.C., Troy,
Michigan, for Appellant. Gerald A. Fisher, SECREST,
WARDLE, LYNCH, HAMPTON, TRUEX & MORLEY,
Farmington Hills, Michigan, for Appellees. ON BRIEF:
Marc L. Newman, E. Powell Miller, MILLER SHEA P.C.,
Troy, Michigan, for Appellant. Gerald A. Fisher, SECREST,
WARDLE, LYNCH, HAMPTON, TRUEX & MORLEY,
Farmington Hills, Michigan, for Appellees.
GUY, J., delivered the opinion of the court, in which
GILMAN, J., joined. REEVES, D. J. (pp. 13-17), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Plaintiff,
VoiceStream Wireless (VoiceStream), appeals from the grant
of summary judgment to defendants, the City of Southfield
and its City Council, in this action alleging violations of the
Telecommunications Act of 1996, 47 U.S.C. § 332, and
claims under 42 U.S.C. § 1983. The district judge found that
the Telecommunications Act claims were barred by the 30-
day statute of limitations for instituting suit, and that the
plaintiff did not have standing to raise the issues asserted in
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.

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

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

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No. 02-1713 Omnipoint Holdings v.
City of Southfield, et al.
7
Brateman, yea; Samona, yea.
The resolution was ap proved 7 yeas, 0 na ys.
2This section provides that: “Any decision by a State or local
government . . . to deny a request to p lace, co nstruct, or modify personal
wireless service facilities shall be in writing and supported by substantial
evidence contained in a written record.” Id.
III.
The Act provides that a person adversely affected by a final
action or failure to act by a State or local government may file
an action within 30 days of the local government’s final
action or failure to act. 42 U.S.C. § 332(c)(7)(B)(v). The trial
judge held with regard to the Martin site, that defendants’
“final action” which started the statute of limitations running
was the issuance and approval of the minutes of the February
26, 2001 Council meeting. This occurred on April 9, 2001.
Since suit was not filed within 30 days of the April date, the
district judge dismissed that portion of plaintiff’s complaint
that related to the Martin property.
Plaintiff offers several reasons why the district court erred
in applying the statute of limitations, but relies most heavily
on a decision from this court decided after this matter was
dismissed in the trial court. In New Par v. City of Saginaw,
301 F.3d 390, 395-96 (6th Cir. 2002), we held, inter alia, that
in order to meet the “decision . . . in writing” requirement of
47 U.S.C. § 332(c)(7)(B)(iii), a governmental unit’s decision
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.2
8 Omnipoint Holdings v.
City of Southfield, et al.
No. 02-1713
3As 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
the court at that time. It is next to im possible to set forth a “one size fits
all” set of standards, and so the requirements when next applied must take
into account the new context. For example, requirements two and three
in New Par may overlap. If a city turned down a tower application
because the height of the tower would be a hazard to airplanes landing at
a nearby airport, the statement of the reason w ould also be the
explanation.
Assuming, arguendo, that New Par applies retroactively,
we conclude the actions taken by the Southfield City Council
comply with the requirements that are set forth for a valid
“decision in writing.” The council resolution clearly lists the
reasons for the denial and offers an explanation in support of
those reasons. Whether the reasons set forth are sufficient is
always a matter that an unsuccessful applicant can challenge
with a timely filed court action.3
The mandate that the decision must “be separate from the
written record” requires additional exploration. To begin
with, there is no guidance in New Par as to what constitutes
the written record. The phrase “separate from the written
record” was imported from the case of Southwestern Bell
Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001)
(Bell). In Bell the court had occasion to review the decision
of a zoning board of appeals denying a special use permit for
a tower. After the zoning board hearing, the board issued a
short and simple decision indicating, at least in part, the
reasons for the denial. The First Circuit not only found that
this met the “in writing” requirement, but the “substantial
evidence” requirement as well. Despite the fact that the TCA
makes no mention of the writing being in a separate
document, the court also stated: “We conclude, therefore,

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

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No. 02-1713 Omnipoint Holdings v.
City of Southfield, et al.
11
7Voicestream also co uld have asked the City to agree to waive the
30-day period o f limitations.
applicant or to a reviewing court than the resolution which
embodies the reasons for denial.
Since we conclude that the resolution of the city council
meets the New Par standards, the 30-day clock started
running when the resolution became final on April 9, 2001.
In order to avoid the consequences of its late filing, plaintiff
claims that its application really was for permission to erect
a tower somewhere within its “search ring” which would have
included areas adjacent to or near the Martin property. Since
the plaintiff was still talking to the City about the possibility
of the public park site, plaintiff contends that there was no
denial of its “search ring” application until it got the letter
from the defendant indicating it would not sell or lease any of
the park property. There are several problems with this
“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
12 Omnipoint Holdings v.
City of Southfield, et al.
No. 02-1713
district court concluded that since plaintiff had no property
interest in this property, it had no standing to bring suit. In
our view, plaintiff, under the Act, may have had standing, but
we nonetheless affirm the judgment for defendants on this
issue for a much more fundamental reason. The City owned
this deed-restricted property, and the plaintiff simply cannot
compel the City to sell or lease a portion of the park if it
chooses not to. Although plaintiff argues that it had a
“contract to make a contract” based upon the negotiations that
had transpired between the parties, we find this argument
totally lacking in merit. Only the City Council through
formal action, after the grantors had agreed to waive the deed
restriction, could have authorized this lease. This simply
never occurred.
AFFIRMED.

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No. 02-1713 Omnipoint Holdings v.
City of Southfield, et al.
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______________
DISSENT
______________
REEVES, District Judge, dissenting. Because I believe the
majority has misconstrued the holding in New Par v. City of
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
14 Omnipoint Holdings v.
City of Southfield, et al.
No. 02-1713
1For this reason, the logic from Laurence W olf Capital Mgm t. Trust
v. City of Fern dale, 61 Fed. Appx. 204, 211 (6th Cir. 2 003), discussed
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
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.
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

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City of Southfield, et al.
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the written record, even though the decision was contained
within the meeting minutes. The 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 case:
16 Omnipoint Holdings v.
City of Southfield, et al.
No. 02-1713
[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
VoiceStream’s special use permit. The requirements of New
Par make 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
zoning variance to issue a separate decision, supported by

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No. 02-1713 Omnipoint Holdings v.
City of Southfield, et al.
17
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.

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