Argued December 12, 2013.
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Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:11-cv-01201-GBL-JFA). Gerald Bruce Lee, District Judge.
Thomas David Stoner, GREEHAN, TAVES, PANDAK & STONER, PLLC, Chantilly, Virginia, for Appellant/Cross-Appellee.
Thomas Scott Thompson, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C., for Appellee/Cross-Appellant.
J. Patrick Taves, Michael W.S. Lockaby, GREEHAN, TAVES, PANDAK & STONER, PLLC, Chantilly, Virginia; John R. Roberts, County Attorney, Ronald J. Brown, Deputy County Attorney, LOUDOUN COUNTY ATTORNEY'S OFFICE, Leesburg, Virginia, for Appellant/Cross-Appellee.
Daniel P. Reing, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C., for Appellee/Cross-Appellant.
Before NIEMEYER, AGEE, and WYNN, Circuit Judges. Judge Niemeyer wrote the opinion for the court except as to Part IV.C.1 in part and Part IV.C.2, in which Judge Agee concurred except as to Part IV.C.1 in part and Part IV.C.2. Judge Niemeyer wrote a separate opinion as to Part IV.C.1 in part and Part IV.C.2. Judge Agee wrote a separate opinion concurring in part. Judge Wynn wrote a separate opinion concurring in part and dissenting in part.
NIEMEYER, Circuit Judge, for the court except as to Part IV.C.1 in part and Part IV.C.2:
In October 2011, the Loudoun County (Virginia) Board of Supervisors denied the applications of T-Mobile Northeast LLC for permits to build two telecommunication towers in Loudoun County -- one disguised as a bell tower, to be located on the property of a church in Sterling (in the eastern part of the county), and one disguised as a silo on a farm in Lovettsville (in the northern part of the county). T-Mobile commenced this action under the Telecommunications Act of 1996, challenging the Board's decisions.
On cross-motions for summary judgment, the district court concluded that the Board improperly denied T-Mobile's application for the silo tower in Lovettsville because the Board relied on the environmental effects of radio frequency emissions -- a statutorily prohibited basis for regulation. Even though the Board had given other valid reasons for its decision, the court issued an injunction requiring the Board to issue the necessary permits for the site, concluding that if it remanded the case, the valid reasons would only become a subterfuge for the invalid environmental reason. The district court affirmed the Board's decision denying permits for the bell tower in Sterling because (1) substantial evidence supported the Board's decision; (2) a denial of the permits would not have the effect of prohibiting T-Mobile from providing personal wireless service to its customers; and (3) the decision was not based on the environmental effects of radio frequency emissions.
On appeal, the Board contends that the illegal reason it gave for denying the application for the silo tower represented the views of only one member of the Board and was not binding on the Board. Moreover, it argues, it gave other valid reasons sufficient to justify denial of T-Mobile's application for the silo tower. On its cross-appeal, T-Mobile contends that neither of the Board's denials were supported by substantial evidence and, with respect to the bell tower, that the Board's decision denied it the ability to fill significant gaps in its wireless coverage and therefore effectively prohibited it from providing personal wireless service, in violation of the Act. It also contends that the Board relied on radio frequency emissions to deny the bell tower application, although not expressly.
For the reasons given herein, we affirm the district court's rulings as to both of the Board's decisions.
T-Mobile's business includes the provision of personal wireless service, along with other telecommunications services, in the Washington metropolitan area, including Loudoun County. Its wireless network, like other wireless networks, operates by transmitting radio signals to and from antennas mounted on towers, poles, buildings, or other structures. In order to provide reliable service, it must have multiple antennas arranged in a grid by which to overlap coverage. While T-Mobile currently has 56 wireless telecommunications facilities in Loudoun County, it determined, based upon its engineers' analyses, that it still had substantial gaps in coverage in the areas at issue here. To address the deficiency, T-Mobile identified two locations at which it sought to build new wireless telecommunication facilities: (1) the property surrounding the Christ Our Savior Lutheran Church on Jefferson Drive in Sterling, Virginia (the " Bell Tower Site" ) and (2) the area surrounding the Stephens family farm in Lovettsville, Virginia (the " Silo Site" ). After making arrangements with both the Stephens family
and the Church for construction of facilities on their properties, T-Mobile submitted applications to the Loudoun County Board of Supervisors for permits to construct monopole antennas at the sites -- one disguised as a silo and the other as a bell tower.
In order to build on the sites, T-Mobile was required to secure from Loudoun County: (1) a " commission permit," which issues initially from the County Planning Commission and is reviewed by the Board for final approval, and (2) a zoning " special exception," which is granted by the Board. In evaluating both types of applications, the Planning Commission and the Board consider the location and character of the proposed structure to determine whether it is in accord with the Loudoun County Comprehensive Plan (the " Comprehensive Plan" or the " Plan" ). Since 1996, the Comprehensive Plan has included a " strategic land use plan for telecommunications facilities" that favors the construction of such facilities on existing structures and requires compatibility with other land uses. The plan requires that proposals for facilities include siting and design elements that " mitigate negative impacts" and satisfy a number of aesthetic criteria. Also, the county's zoning rules require that such facilities be " compatible with development in the vicinity with regard to the setting, color, lighting, topography, materials, and architecture." The plan's overall goal is to ensure that telecommunications facilities " blend with the background."
The Silo Site application
T-Mobile's Silo Site application proposed a monopole hidden in a 125-foot-high farm silo that T-Mobile would construct. When the Planning Commission voiced concerns about the height of the silo, T-Mobile revised its proposal to reduce the height to 100 feet. The Planning Commission then issued a commission permit and recommended approval of the facility, finding that the design was in conformity with the Comprehensive Plan. After T-Mobile submitted the Planning Commission's decision to the Board, the Board held a public hearing in July 2011 on both the commission permit and the special exception. County residents present spoke mostly in opposition to the proposal, mentioning concerns about the silo's aesthetics and the antenna's emission of radio waves. In response to the continuing comments regarding aesthetics at the Board meeting, T-Mobile again revised its proposal, reducing the proposed height of the silo to 90 feet.
The Board conducted a business meeting on October 17, 2011, to vote on the Silo Site application. During the meeting, the Board members (Supervisors) discussed reasons for rejecting the application, including aesthetic concerns and the availability of other potential sites. Supervisor Miller also requested, in response to the numerous comments of citizens, that the Board include the " negative environmental impact" from radio frequency emissions as a reason in the pending motion for denying T-Mobile's application. The Board accepted Miller's suggestion to amend the pending motion and then voted 7 to 2 to carry the motion. As required by the Telecommunications Act, the Board issued a written notice of its decision. It gave four reasons for denying the special exception: (1) the proposed design did not mitigate the silo's significant structural presence, thus creating " an unnecessary visual impact on surrounding properties" ; (2) the proposed silo height of 90 feet did not " blend with the . . . surrounding area" ; (3) a denial of the application would not " have the effect of prohibiting the provision of personal wireless services in this area" ; and (4) the facility would have a " negative environmental impact." And it gave two
reasons for denying the commission permit: (1) the project was not consistent with the strategic land use plan; and (2) other preferred locations were available to T-Mobile.
The Bell Tower Site application
T-Mobile's original application for a telecommunications facility on the Church property included a proposal to construct an 80-foot flagpole that would house the antenna. When the Planning Commission rejected that proposal, T-Mobile amended it to propose instead an 80-foot bell tower to house the antenna. During the ensuing review process, T-Mobile made a number of additional changes in design, such as varying the color scheme of the structure to better blend with the background. It also offered alternative designs, such as a steeple or tree pole. After a lengthy give-and-take process, the Planning Commission issued the commission permit and recommended approval of the facility.
The Board held its public hearing on the Bell Tower Site application on September 12, 2011, and citizens raised a number of concerns with the project, primarily aesthetic, referring to the proposed facility's visual impact. As with the Silo Site, some citizens also raised concerns over the possible negative health impacts of radio frequency emissions.
The Board conducted a business meeting on the Bell Tower Site application on October 4, 2011, and, following a brief discussion, voted to reject it. The Board's written notice of decision gave as reasons that the proposed facility (1) was not at a preferred location; (2) was not on an existing structure; (3) was in a residential area; and (4) did not mitigate the impact on adjacent residential uses. The Board did not refer to the citizens' concerns over radio frequency emissions and gave no indication that it relied on such concerns to deny the application.
Following the Board's rejection of its applications, T-Mobile commenced this action, alleging that the Board overstepped several limitations imposed on it by the Telecommunications Act of 1996. With respect to the Silo Site, T-Mobile alleged that the Board's denial was not supported by substantial evidence and was made on the basis of the environmental effects of radio frequency emissions. And with respect to the Bell Tower Site, it alleged that the Board's rejection was not supported by substantial evidence, caused an effective prohibition of service, and was made on the basis of radio frequency emissions.
On the parties' cross-motions for summary judgment, the district court entered judgment in favor of T-Mobile on the Silo Site, concluding that although the Board's rejection was supported by substantial evidence, the Board improperly relied on the environmental effects of radio frequency emissions. The court entered an injunction directing the Board to issue the necessary permits to T-Mobile for construction of the Silo Site tower. And, as to the Bell Tower Site, the court entered judgment in favor of the Board, rejecting each of T-Mobile's arguments.
T-Mobile Northeast LLC v. Loudoun Cnty. Bd. of Supervisors, 903 F.Supp.2d 385 (E.D. Va. 2012).
From the district court's judgment dated July 20, 2012, the Board filed an appeal challenging the court's decision on the Silo Site, and T-Mobile filed a cross-appeal challenging the court's affirmance of the Board's decision on the Bell Tower Site, as well as its conclusion that the Board's decision on the Silo Site was supported by substantial evidence.
The Telecommunications Act of 1996 was enacted " [t]o promote competition and reduce regulation in order to secure lower
prices and higher quality services for American telecommunication consumers and encourage the rapid deployment of new telecommunications technologies." Pub. L. No. 104-104, 110 Stat. 56, 56 (1996). As part of the Act, Congress divided authority over personal wireless service facilities, preserving generally to state and local governments their traditional zoning control over the placement, construction, and modification of such facilities while, at the same time, limiting state and local governments' ability " to frustrate the Act's national purpose of facilitating the growth of wireless telecommunications."
360° Commc'ns Co. of Charlottesville v. Bd. of Supervisors., 211 F.3d 79, 86 (4th Cir. 2000);
see also City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005) (noting that the Act " reduc[ed] . . . the impediments imposed by local governments upon the installation of facilities for wireless communications, such as antenna towers" ). Specifically, the Act provides that in regulating the siting and construction of wireless facilities, a state or local government (1) may not " unreasonably discriminate among providers" ; (2) may not effectively prohibit " the provision of personal wireless services" ; (3) must act on a request to place, construct, or modify such facilities " within a reasonable period of time" ; (4) must render its decisions " in writing" and with the support of " substantial evidence contained in a written record" ; and (5) may not regulate the placement, construction or modification of such facilities " on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions." 47 U.S.C. § 332(c)(7)(B). State and local governments must comply with each of these provisions when regulating wireless facilities.
The Act provides that anyone " adversely affected" by a final decision of a state or local government under § 332(c)(7) may commence an action " in any court of competent jurisdiction," which must hear and decide the action " on an expedited basis." 47 U.S.C. § 332(c)(7)(B)(v). When such action challenges whether the state or local government's decision was supported by " substantial evidence," see id. § 332(c)(7)(B)(iii), the court defers to the state or local government, upholding its decision if it has " substantial support in the record as a whole even if [the court] might have decided differently as an original matter."
New Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. of Supervisors, 674 F.3d 270, 274 (4th Cir. 2012) (quoting AT& T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 430 (4th Cir. 1998) (internal quotation marks omitted));
see also AT& T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307, 314 (4th Cir. 1999). On the other hand, if the action alleges that the state or local government violated any of the other statutory limitations on its regulatory authority, the court decides the issue de novo. See 47 U.S.C. § 332(c)(7)(B)(v);
see also Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir. 2002) (" Unlike the substantial evidence issue, the issue of whether [a board] has prohibited or effectively prohibited the provision of wireless services is determined de novo by the district court" );
VoiceStream Minneapolis, Inc. v. St. Croix Cnty., 342 F.3d 818, 833 n.6 (7th Cir. 2003) (applying same standard).
With these principles in hand, we turn to the issues raised by the parties on appeal.
The Board contends on appeal that the district court erred in ordering it to grant
T-Mobile permits to construct the facility at the Silo Site in Lovettsville on the basis that the Board illegally relied on the environmental effects of radio frequency emissions. See 47 U.S.C. § 332(c)(7)(B)(iv). The Board argues that this reason, albeit illegal, was given by only one Board member and therefore was " not binding on the Board as a whole." The Board also argues that even if this reason were binding on it, its decision to deny the application was also based on valid reasons that were ...