T-Mobile Northeast LLC v. Howard County Board of Appeals, No. 12-1682 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1682 T-MOBILE NORTHEAST LLC, Plaintiff Appellant, v. HOWARD COUNTY BOARD OF APPEALS, Defendant Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:11-cv-00729-RDB) Argued: March 21, 2013 Decided: May 3, 2013 Before WILKINSON, KING, and WYNN, Circuit Judges. Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Wilkinson and Judge King concurred. ARGUED: Thomas Scott Thompson, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C., for Appellant. Melissa Shane Whipkey, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appellee. ON BRIEF: Margaret Ann Nolan, County Solicitor, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. WYNN, Circuit Judge: T-Mobile Northeast LLC ( T-Mobile ) challenges a zoning decision by the Howard County Board of Appeals (the Board ) denying T-Mobile s application for a conditional use permit to construct a communications tower on the property of a church located in the County. T-Mobile argues that the Board violated the Act Telecommunications of 1996 in denying the company s permit application because the decision was not supported by substantial evidence or, in the alternative, because it effectively prohibited the provision of wireless services. But our review reveals that substantial evidence supports the Board s conclusion that T-Mobile did not diligently seek to site the tower on government zoning regulations. property, as required by local And we cannot conclude that the Board s denial constitutes an effective prohibition of service because T-Mobile did alternatives deficiency. not to demonstrate the church that there site to are no remedy reasonable its coverage Therefore, we affirm. I. T-Mobile, a licensed personal wireless services provider, determined that it had a coverage deficiency along a portion of Burntwoods deficiency, Road in T-Mobile Howard sought County, to 2 Maryland. construct a To new remedy the facility, a stealth telecommunications monopole, at the rear of Shepherd of the Glen Lutheran Church property in Glenwood, Maryland (the site ). T-Mobile considered siting the facility at four other locations-Glenelg High School, Walnut Springs Nursery, Gethsemane Baptist Church, and a cluster of amateur ham radio towers-but ultimately determined that each of these locations was either not technically feasible or practically unavailable. The site selected by T-Mobile is zoned as a Rural Residential-Density Exchange Option District. Howard County s zoning permit regulations construction of require a conditional communications towers on Density Exchange Option District properties. use Rural for Residential- In pertinent part, Howard County s zoning regulations provide: The Hearing Authority shall have the power to permit conditional uses, provided the following general standards are met: . . . The proposed use at the proposed location will not have adverse effects on vicinal properties above and beyond those ordinarily associated with such uses. In evaluating the plan under this standard, the Hearing Authority shall consider whether: . . . The ingress and egress drives will provide safe access with adequate sight distance, based on actual conditions, and with adequate acceleration and deceleration lanes where appropriate. . . . An applicant for a new communication tower shall demonstrate that a diligent effort has been made to locate the proposed communication facilities on a government structure or, on an existing structure or within a nonresidential zoning district, and that due to valid considerations, including physical 3 the constraints, and economic or technological feasibility, no appropriate location is available. Howard County Zoning Regulations §§ 131.B, 131.N.14.b.(1). The regulations also provide that The applicant for a conditional use shall have the burden of proof, which shall be by a preponderance of the evidence and which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Hearing Authority or are required to meet any provisions of these regulations. Id. § 131.G. On November 20, 2009, T-Mobile submitted a Conditional Use Petition to the Howard County Hearing Authority requesting to build a wireless facility on the site. On February 18, 2010, the Howard County Department of Planning and Zoning issued a Technical Staff Report finding that T-Mobile had satisfied the criteria for a conditional use permit and recommending that TMobile s petition be granted. After holding a hearing, the Hearing Examiner issued decision denying T-Mobile s petition on March 15, 2010. ruling, the Hearing Examiner found there were no a In so sight distance or safe access issues and that T-Mobile had complied with regulations regarding the investigation of alternative sites, but denied the petition due to concerns over the size of T-Mobile s proposed equipment compound. 4 T-Mobile appealed to the Board. The Board held three public hearings concerning T-Mobile s application during which participants questioned T-Mobile s efforts to site the facility at alternative expressed locations. concern that In T-Mobile particular, had not Board engaged members in formal negotiations with Glenelg High School to locate the facility there. The Board denied T-Mobile s petition on February 16, 2011 on grounds that the company had failed to meet its burden to demonstrate that the proposed ingress and egress to the site would provide safe access with adequate sight distance and to show that it had made a diligent effort to site the facility on government property. T-Mobile court on relief alleged brought March from 18, the that application J.A. 135. the present 2011, action seeking Board s Board s violated two federal declaratory decision. the in denial provisions and district injunctive Specifically, of the of the T-Mobile company s permit Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(i)(II) and (B)(iii), and Maryland law. T-Mobile moved for summary judgment on August 26, 2011, and soon thereafter the Board filed a cross-motion for summary judgment. On March 30, 2012, the district court denied T- Mobile s motion and entered summary judgment in favor of the Board. 1123043, T-Mobile Ne. LLC v. Howard Cnty. Bd. of Appeals, 2012 WL at *10 (D. Md. March 5 30, 2012) ( Howard County ). Following the district court s denial of T-Mobile s Motion to Reconsider, T-Mobile timely appealed to this Court. II. We review a district court s decision on summary judgment de novo, applying court. 380, the same legal standards as the district T-Mobile Ne. LLC v. City of Newport News, Va., 674 F.3d 384-85 omitted). (4th Cir. 2012) ( Newport News ) (quotation The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). entitled to summary In determining whether a party is judgment, we consider all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Newport News, 674 F.3d at 385 (quotation marks omitted). On appeal, decision was T-Mobile contrary contends to the that the district Telecommunications court s Act, which Congress enacted to facilitate the development and proliferation of new telecommunications technology and infrastructure. Pub. L. No. 104-104, 110 Stat. 56 (1996). statute, Congress governments decisions, sought traditional while also to control ensuring 6 preserve over their See In drafting the local land use decisions and state and zoning did not constitute wireless an undue impediment communications to technology. the rapid 360Ì deployment Commc ns Co. of of Charlottesville v. Bd. of Supervisors of Albemarle Cnty., 211 F.3d 79, 86 (4th Cir. 2011) ( Albemarle County ). T-Mobile argues that the Board s decision ran afoul of two provisions of the 332(c)(7)(B)(iii), Telecommunications which requires Act: that (1) state or Section municipal decisions denying an application to construct a wireless service facility be supported by substantial evidence, and (2) Section 332(c)(7)(B)(i)(II), the placement, which provides construction, and that [t]he modification regulation of of personal wireless service facilities by any State or local government . . . shall not prohibit or have the effect provision of personal wireless services. 1 1 of prohibiting the We disagree. T-Mobile also contends that the Board s decision violated Maryland Law, which requires that a Board s decision be in accordance with local zoning regulations and supported by facts in the record. Md. Code. Ann. art 25A, § 5; J.A. 23-24. To satisfy Section 332(c)(7)(B)(iii) s substantial evidence requirement, a zoning decision must comply with state and municipal zoning law. Mobile Cent., LLC v. Wyandotte Cnty., 546 F.3d 1299, 1307 (10th Cir. 2008); MetroPCS, Inc. v. City & Cnty. of San Francisco, 400 F.3d 715, 723 24 (9th Cir. 2005); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir. 1999). Thus, as the district court correctly concluded, TMobile s contention that the decision was not in accord with Maryland law merges with its substantial evidence claim under the Telecommunications Act. Howard Cnty., 2012 WL 1123043, at *4. 7 A. For purposes of actions under Section 332(c)(7)(B)(iii), we have held that [s]ubstantial evidence is more than a mere scintilla, but less than a preponderance, Newport News, 674 F.3d at 385, and is such relevant evidence as a reasonable mind might accept Wireless as PCS, Beach, 155 adequate Inc. F.3d v. 423, to City 430 support Council (4th Cir. a of the 1998) Camera v. NLRB, 340 U.S. 474, 488 (1951)). conclusion, City of (quoting AT&T Virginia Universal Under this standard, we must affirm if the Board s decision was reasonable, even if we would have reached a different conclusion independently. Newport News, 674 F.3d at 386. T-Mobile contends that substantial evidence did not support the Board s conclusion that T-Mobile failed to make a diligent effort to site the facility on government property, as required by local regulations. 131.N.14.b.(1). Howard County Zoning Regulations § In particular, the Board found that T-Mobile failed to make adequate efforts to site the facility at Glenelg High School because the company made only telephone calls to the Howard County School Facilities Office about building a telecommunications light pole at the Glenelg High School [and] had not identified anyone [it] had talked to as having authority to decide on acceptance of the monopole installation on the particular property. More importantly, [T-Mobile] had not demonstrated to the Board that it had submitted written proposals with specifications to any person of authority to obtain 8 acceptance of installation of the monopole on a particular property. A telephone call to an entity without more regarding locating a cell tower on a particular property is hardly sufficient to comport with the requirement of diligent effort. J.A. 136. On appeal, T-Mobile argues that it diligently sought to site the tower at Glenelg High School as evidenced by the fact that it received (1) a verbal rejection from an unidentified employee with the School System ) written rejection Howard County facilities from office School Public and, System School System subsequently, Chief Operating (the (2) a Officer Teresa Alban. Regarding the verbal rejection, Mearl Kemberling, a site acquisition specialist for T-Mobile, made a phone call to the School System facilities office to gauge its interest in placing the facility attested that on the Glenelg person High he School spoke with grounds. Kemberling said facilities the office recently had rejected a proposal from AT&T Wireless to build a telecommunications facility at the high school and was not interested in T-Mobile s offer either. But Kemberling was unable to identify the person with whom he spoke and did not know if that person had authority to make a decision regarding whether to install a wireless facility on school property. Nor could Kemberling provide any written record of the phone call, contending it had been destroyed in a 9 flood. Indeed, during oral argument on the summary judgment motions, T-Mobile s counsel acknowledged that Kemberling was a little bit sloppy and should have at least kept track of who he was talking to and what their position was. J.A. 596 97. In such circumstances, we cannot say that the Board unreasonably concluded that Kemberling s single phone call did not constitute a diligent effort to site the facility at Glenelg High School. Additionally, School System Chief Operating Officer Alban s letter to T-Mobile, dated October 11, 2010, stated simply: Per your request to provide a written statement, our response is that we have denied the request to put a cell phone tower on school system property. J.A. 123. T-Mobile contends that this letter was an unequivocal[] denial of its request to install a wireless facility at Glenelg High School. Appellant s Br. at 36. But, as the district court correctly noted, the letter was issued the day before the Board s last hearing on T-Mobile s application request. and did not contain any specifics Howard Cnty., 2012 WL 1123043, at *6. as to the T-Mobile also failed to produce any independent documentation regarding the specifics brevity, of we particular its request. cannot proposal determine from Moreover, whether T-Mobile or the given the letter generally letter s rejected denied requests to install wireless facilities at the school. 10 a all Thus, the Board reasonably concluded that the letter did not satisfy T-Mobile s burden to show that it had made a diligent effort to locate the tower at Glenelg High School, and therefore the Board did not commit reversible error in denying T-Mobile s application. 2 B. Having determined that substantial evidence supports the Board s decision, we next must decide whether the denial of TMobile s permit prohibition application of service, 332(c)(7)(B)(i)(II). Supervisors, 672 is in tantamount violation to a general of Section T-Mobile Ne. LLC v. Fairfax Cnty. Bd. of F.3d 259, 266 (4th Cir. 2012) ( Fairfax County ). To prevail on a theory that the denial of a petition for a particular site effectively prohibits service, a plaintiff must show (1) that there is a legally cognizable deficit in coverage amounting to an effective absence of coverage, and (2) that it lacks reasonable alternative sites to provide coverage. 268. Id. at [A] plaintiff s burden to prove a violation of [Section 2 Because substantial evidence supports the Board s conclusion that T-Mobile failed to make diligent efforts to site the facility on government property, we need not address the Board s alternative basis for denying T-Mobile s petition-that T-Mobile failed to provide adequate evidence of safe access to the site. 11 332(c)(7)(B)(i)(II)] is substantial and is particularly heavy when . . . the plaintiff already provides some level of wireless service to the area. burden on relief. either of Id. the If a plaintiff fails to meet its two prongs, it is not entitled to Id. at 266, 268. To show a lack of reasonable alternative sites, a plaintiff must demonstrate that further reasonable efforts to gain approval for alternative facilities would be fruitless. New Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. of Sup rs ( New Cingular II ), 674 F.3d 270, 277 Fairfax Cnty., 872 F.3d at 268). (4th Cir. 2012) (quoting This burden is satisfied if the plaintiff shows that reasonable efforts to obtain approval for alternative sites are so likely to be fruitless that it is a waste of time to try. assessing whether Id. at 277 (quotations omitted). further efforts to gain approval In of alternative facilities would be fruitless, we also consider a zoning board s facilities. past decisions on applications for wireless Fairfax Cnty., 672 F.3d at 269. Here, T-Mobile does not dispute that there is some level of wireless coverage in the area. J.A. 450-56 (noting, in an expert report prepared for and relied upon by T-Mobile, that there is not reliable in-building and in-vehicle coverage in the area served by the proposed site). 12 wireless Thus, T- Mobile s burden to show a lack of reasonable alternatives is particularly heavy. Fairfax Cnty., 672 F.3d at 268. As we explained previously, the Board reasonably determined that T-Mobile failed to produce sufficient evidence that it diligently pursued siting the facility at Glenelg High School. See supra Part II.A. In such circumstances, we cannot presently conclude that T-Mobile has met its particularly heavy burden of showing that further efforts to locate the facility at an alternative site-Glenelg fruitless. strong High School, in particular-would be Moreover, it is undisputed that the Board has a record of approving conditional use permits: Since October 2008, the Board has approved five of the six conditional use permit applications submitted by T-Mobile. Therefore, because T-Mobile has failed to satisfy its burden of showing a lack of reasonable alternatives to the proposed site, it is not entitled to relief under Section 332(c)(7)(B)(i)(II). 3 III. In sum, substantial evidence supported the Board s decision that T-Mobile failed to make diligent facility at Glenelg High School. 3 efforts to site the And T-Mobile did not satisfy Because we conclude that T-Mobile failed to satisfy its burden on the lack of reasonable alternatives prong, we need not, and thus do not, address the effective absence of coverage prong. Fairfax Cnty., 672 F.3d at 266, 268. 13 its particularly heavy burden to show that reasonable alternative sites to provide coverage. there were no Accordingly, we affirm. AFFIRMED 14
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