T-Mobile Northeast LLC v. The Loudoun Cty. Bd., No. 12-2396 (4th Cir. 2014)
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T-Mobile filed suit under the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B), challenging the Board's denial of T-Mobile's application for permits to build two telecommunications towers in Loudoun County - one disguised as a bell tower and one disguised as a silo on a farm. The district court concluded that the Board improperly denied T-Mobile's application for the silo tower and affirmed the Board's decision denying permits for the bell tower. The court concluded that the Board's decision to deny T-Mobile's Bell Tower Site application was supported by substantial evidence; did not have the effect of prohibiting the provision of personal wireless services in view of the possibility of other alternatives; and was not made on the basis of health concerns about radio frequency emissions. In regards to the Silo Site, the court concluded that while the aesthetic concerns that the Board gave for denying T-Mobile's application were supported by substantial evidence, its decision to base the denial of T-Mobile's application on improper environmental concerns about radio frequency emissions was prohibited by the Act. Accordingly, the court affirmed the judgment of the district court.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2396 T-MOBILE NORTHEAST LLC, Plaintiff - Appellee, v. THE LOUDOUN COUNTY BOARD OF SUPERVISORS, Defendant - Appellant. No. 12-2397 T-MOBILE NORTHEAST LLC, Plaintiff - Appellant, v. THE LOUDOUN COUNTY BOARD OF SUPERVISORS, Defendant - Appellee. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:11-cv-01201-GBL-JFA) Argued: December 12, 2013 Decided: Before NIEMEYER, AGEE, and WYNN, Circuit Judges. April 3, 2014 Affirmed by published opinion. 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. ARGUED: 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. ON BRIEF: 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. 2 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 Board s decision denying The district court affirmed 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 3 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 of personal court s rulings as to both of the Board s decisions. I T-Mobile s business includes the provision wireless service, along with other telecommunications services, in the Washington metropolitan area, including Loudoun County. Its wireless network, like other wireless networks, operates by 4 transmitting towers, radio poles, provide signals buildings, reliable to or service, and from other it antennas structures. must have mounted In order multiple on to antennas arranged in a grid by which to overlap coverage. While T-Mobile currently facilities Loudoun has 56 County, wireless it telecommunications determined, based upon its in engineers analyses, that it still had substantial gaps in coverage in the areas at issue identified wireless two here. To locations address at telecommunication which the deficiency, it sought facilities: to (1) T-Mobile build the new 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 the Stephens family and 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: issues initially the (1) a commission permit, which from the County Planning Commission Board for final approval, and reviewed by special exception, which is 5 granted by the (2) and a Board. is zoning 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, topography, materials, and architecture. color, lighting, 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 6 the design was in conformity with the Comprehensive Plan. T-Mobile submitted the Planning Commission s decision After 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. regarding In aesthetics response at the to Board the continuing meeting, comments 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 Mobile s application. in the pending motion for denying T- 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. for denying the special exception: It gave four reasons (1) the proposed design did not mitigate the silo s significant structural presence, thus 7 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. it gave two reasons for denying the commission permit: And (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. 8 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, discussion, voted to reject it. and, following a brief 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 Mobile the commenced overstepped Board s this several rejection action, its alleging limitations Telecommunications Act of 1996. of imposed applications, that on the it T- Board by the 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 environmental effects of radio frequency emissions. of the And with respect to the Bell Tower Site, it alleged that the Board s 9 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. II The Telecommunications Act of 1996 was enacted [t]o promote competition and reduce regulation in order to secure 10 lower prices and higher quality services for American telecommunication consumers and encourage the rapid deployment of new telecommunications technologies. 110 Stat. 56, 56 (1996). Pub. L. No. 104-104, As part of the Act, Congress divided authority over personal wireless service facilities, preserving generally zoning to state control modification of and over such local the governments placement, facilities while, their traditional construction, at the same and 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 of Albemarle Cnty., 211 F.3d 79, 86 (4th Cir. 2000); see also City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (noting that the Act reduc[ed] . . . the impediments imposed by local governments upon the installation of facilities towers ). for wireless communications, such as antenna 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 11 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 concerning such emissions. with the [FCC s] regulations 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] original matter. might have decided differently as an 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 12 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 district of wireless court ); services VoiceStream is determined Minneapolis, de Inc. novo v. by St. the 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. III 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 13 sufficient to deny the application, and that therefore the court s injunction was simply punishment for the inclusion of an illegal reason. At Mobile s its October 17, application significant complaints. 2011 for structural the meeting, Silo presence the Board Site, citing and related rejected the T- silo s aesthetic At the suggestion of Supervisor Miller, the Board also included as a reason for rejection the antenna s negative environmental impact. As Supervisor Miller explained, We've had speaker after speaker come in here and talk to us about their concerns of being exposed to radiation from an evolving, dynamic technology. With particular relevance to the issue before us, in proposing his amendment, Supervisor Miller told the Board that it was made notwithstanding the prohibition on what I m going to propose [i]n the Telecommunications Act of 1996. Although the district court concluded that the aesthetic reasons the Board gave for denying T-Mobile s application were supported by substantial evidence, it also concluded that the Board nonetheless impermissibly relied, at least in part, on the environmental effects of radio frequency emissions. court noted that Supervisor Miller even commented that the Board and other local governing bodies deny wireless facility applications on the prohibited basis of environmental impact but cite permissible reasons as subterfuge for their true concerns. Despite Supervisor Miller s admission to 14 The violating federal law, the Board finally adopted his proposed amendment by a 7-to-2 vote. Loudoun Cnty., 903 F. Supp. 2d at 409 (citation omitted). The court refused to rule that the valid reasons given by the Board to deny T-Mobile s application should allow it to overlook the invalid reason because the Board s decision to include the illegal reason was deliberate, and any remand to allow the Board to reform its reasons would only contribute to the Board s subterfuge: The evidence before the Court urges the conclusion that a remand would result in the Board simply justifying denial of the Stephens Silo application by citing the same permissible reasons listed in the written decision challenged in this action. The Court is not satisfied that this decision would be valid under the Telecommunications Act, particularly in light of Supervisor Miller s comment that the Board falsely cites lawful reasons as pretexts for unlawfully denying permit applications and the Board s silent approval of Supervisor Miller s proposal. A remand would simply invite the Board to violate the § 332(c)(7)(B) again while concealing its violation with false justifications for denying T-Mobile s application. Loudoun Cnty., 903 holding, the court substantial F. evidence Supp. also to 2d noted support at 412. that In the approval of support record the of its contained application, pointing to the County Planning Commission s recommendation that the Board approve the proposed facility based on its staff s finding that the interior location and stealth design of the proposed facility were in conformance 15 with the Comprehensive Plan and sensitive landscape. to the surrounding rural agricultural Id. at 411 (internal quotation marks omitted). Based on our review of the record, we conclude that the district court correctly held that the Board s basis for its decision violated the prohibition against regulating on the basis of radio frequency emissions. First, the record shows that Supervisor Miller s comments during the Board meeting were not isolated, either from evidence before the Board or from the Board s own views. the The record shows that discussions of health concerns were prevalent throughout the several hearings. On July 11, 2011, the Board questioned a representative of T-Mobile about the transmission wattage of the antenna at the Silo Site and whether the signal would be radiation optimized exposure in such level. a At way the that same would increase hearing, a the citizen testified that her two boys and other children . . . [would] be affected by the electromagnetic radiation. And in light of these comments about health and safety, a T-Mobile employee offered to address the safety concerns of the citizens. Again at a September 21, 2011 hearing to discuss application, Supervisor York stated: But I do have a question because I hear we are concerned about the radio waves and the possibility of health issues, which I don t even think we have the ability to consider under FCC rules. But having give[n] that, now I am hearing the limit to three 16 the users [on the proposed monopole]. Are there more radio wave impacts for health issues with each user on a tower? In other words, if you limit to one, is it different than if you have five users on a tower or is it the same no matter what? A T-Mobile representative responded that there would be some increase in radio frequency emissions with an increase in the number of telecommunications providers using the tower but that the increase would not present a health risk. Finally, at the October 17, 2011 Board meeting, Supervisor Miller successfully requested that radio frequency emissions be given as a reason for denying the permits. As he explained: We ve had speaker after speaker come in here and talk to us about their concerns of being exposed to radiation from an evolving, dynamic technology. * * * Unless these applications are going to be reviewed and voted on by the Congress of the United States, they have done the opposite of occupy the field by depriving the level of government that does have to review and vote on these applications the right to consider something that our direct constituents have asked us to look at. Governments at our level all over the country do the same thing when they decide that s the reason to turn down one of these applications: They lie. They give a reason that s on the legal list when that s not what s on their mind. I want this decided in a court of law that will be asked the question, Do we have the right to look at something that Congress closed its eyes to 15 years ago and in the context of an evolving technology where frequencies change, power levels change, radiation patterns change, and studies have been made available since the decision was made that there are risks to being exposed this close. 17 When Supervisor effects of Miller radiation made as a a motion include for reason to the denying health T-Mobile s application, the Board added the reason to the motion to deny the application and voted 7 to 2 to carry the motion. The written the denial given by the Board specifically included health risk reason. Based Board as on a this whole record, it regulated is on thus the indisputable basis of emissions, a prohibited basis under the Act. 332(c)(7)(B)(iv). regulating the radio that the frequency See 47 U.S.C. § This explicit statutory prohibition against placement, construction, and modification of wireless facilities on the basis of the environmental effects of radio frequency emissions is a limitation imposed by the Act on the Board s authority. And the fact that the Board relied on valid its reasons to support decision violation of a statutory limitation. Court, each subsection in § does not immunize its As noted by the Supreme 332(c)(7)(B) is a specific limitation[] on the traditional authority of state and local governments to regulate the placement, modification of [wireless] facilities. Verdes, 544 U.S. at 115 (2005). construction, and City of Ranchos Palos We thus conclude that the fact that the Board gave valid reasons for its decision, which by themselves would be sufficient, does not immunize it from its violation of the statutory limitation. 18 We also agree with the district court that in the circumstances presented -- where radio frequency emissions were a genuine and substantial concern of the Board and where the County Planning Commission, when considering factors other than radio frequency emissions, found the Silo Site application in compliance with the existing criteria for evaluating such applications -- the matter should not be remanded to the Board. The district court properly interpreted the record in concluding that while the Board would, on remand, omit its concerns over radiation when giving reasons for denial of the application, the radiation concerns decisionmaking would process. nonetheless To reject persist the as part district of the court s conclusions in the circumstances presented in this case would mock Congress s prohibition against the use of radio frequency emissions as a basis for regulating wireless facilities when those emissions were in compliance with FCC regulations. See 47 U.S.C. § 332(c)(7)(B)(iv). The Board devotes a substantial portion of its brief on appeal to noting that it gave legitimate reasons for denying TMobile s Planning Commission permit and that only its denial of the special concerns. exception included improper environmental health It thus argues that the environmental reasons had no effect on the ultimate decision because T-Mobile would have been ineligible to obtain a special exception without first obtaining 19 a commission permit. Yet the Board did not reject the special exception on the basis that T-Mobile was ineligible for one. While the Board s technical description of its procedure may be accurate, the district court correctly concluded that the Board denied T-Mobile s application in one regulatory action. It conducted its hearings on both the permit and the special exception simultaneously, receiving the comments of citizens in connection with both; it addressed one motion when articulating the reasons for denying T-Mobile s application; and it issued one decision for both, even though it did, in its written notice of that decision, separate the reasons for denying the permit and the special exception. That formality, however, did not change Board the fact that the was regulating T-Mobile s placement of the antenna at the Silo Site on the basis of the environmental effects of radio frequency emissions. The local Telecommunications procedural Act mechanisms; does it not limits limit all particularized local regulatory authority, providing that [n]o State or local government . . . may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions, by whatever means. this 47 U.S.C. § 332(c)(7)(B)(iv) (emphasis added). case, regardless of the mechanism employed, Thus, in the Board regulated the placement of T-Mobile s proposed facility based on 20 radio frequency emissions, and its argument assigning reasons to one mechanism for denial and not the other does not justify its violation of the limitation. Because we affirm the district court s injunction directing the Board to grant the necessary permits for the Silo Site, we need not address T-Mobile s arguments challenging the sufficiency of the other evidence given by the Board for its rejection of T-Mobile s application. IV On its cross-appeal, T-Mobile contends that the district court erred in affirming the Board s denial of its application to construct a wireless facility at the Bell Tower Site. It argues supported by U.S.C. § (1) that substantial the Board s evidence, as decision was required not by 47 332(c)(7)(B)(iii); (2) that the decision effectively prohibited T-Mobile from providing its customers with personal wireless service, in violation of § 332(c)(7)(B)(i)(II); and (3) that the decision was made on the basis of the environmental effects of radio frequency emissions, in violation of § 332(c)(7)(B)(iv). Before Board s we address contention these arguments, that T-Mobile however, did not we address the have Article III standing to challenge in court the Board s decision on the Bell Tower Site. 21 A The Board s standing argument is based on its contention that T-Mobile did not have any property interest in the Bell Tower Site to vindicate. See Warth v. Seldin, 422 U.S. 490, 498 (1975) (holding that to have Article III standing, the plaintiff must have a personal stake in the outcome of the controversy ); see also Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (noting that standing requires a plaintiff to have suffered an injury that will be redressed by a favorable decision ). The Board s position rests on the fact that T-Mobile s original written agreement with the Church covered the placement of a flagpole on its property, which the Planning Commission rejected, and that the Church and T-Mobile never modified the agreement to give T-Mobile a right to place a bell tower on the property, as ultimately proposed. The Board argues that even if the court were to find that the Board s decision denying the Bell Tower application was unlawful and subsequently were to grant T-Mobile injunctive relief, T-Mobile would still not be able consent of the Church. to build its facility without the Accordingly, the Board concludes, the court had no ability to redress T-Mobile s injuries, as required for standing. The Board s restrictive view argument, of the however, interests 22 is that based on T-Mobile an overly sought to vindicate in court. While the written agreement with the Church did indeed anticipate an antenna disguised as a flagpole, it also anticipated revisions to the plan. agreed to revised When cooperate plan and T-Mobile flagpole, a with did first so T-Mobile throughout proposed representative indicating that Similarly, when they a of like[d] further in the the bell the the Moreover, the Church development application tower, Church idea refinements of of the in sent a of any process. lieu of an bell a email tower. proposal were forwarded to the Church, the representative indicated that it looks good to us. Representatives of the Church also attended Planning Commission meetings in support of T-Mobile s Bell Tower Site application, and the officially designated representative of the Church, who had conducted the negotiations with T-Mobile, later submitted an affidavit stating that the current design of the proposed wireless facility, which the Church has approved, is a freestanding tower. structure with the appearance of a bell (Emphasis added). T-Mobile expended substantial time and money in pursuing the Bell Tower Site application, and it certainly would not have done so if it had any reason to believe that it could not have benefited from the effort. We conclude that it had a sufficient interest in the Bell Tower Site and in the outcome of its permit 23 application process to give it standing to challenge in court the Board s denial of its application. B On the merits of T-Mobile s challenge of the Board s Bell Tower decision, T-Mobile argues first that the Board did not have substantial evidence in the record to support its decision, thus violating § 332(c)(7)(B)(iii). We disagree. The record contains the testimony of numerous citizens in the community, as well as citizen petitions and emails, stating their strong opposition to the construction of the Bell Tower facility. The residents noted that the tower would be out of proportion with would diminish the the surrounding value of natural their environment; properties; and that that it the machinery used to support the operation of the tower, such as generators, would introduce unwanted noise. These concerns constituted a legitimate basis for the Board s denial of the application. proposed See New Cingular Wireless, 674 F.3d at 274 ( [A] telecommunication neighborhood may support facility s a finding negative of impact substantial on the evidence (internal quotation marks omitted)); City Council of Virginia Beach, 155 F.3d at 427 (upholding rejection based on preserving the character of the neighborhood blight ). 24 and avoiding aesthetic T-Mobile contends, however, that these aesthetic considerations were not legitimate in this case because existing zoning at the site already authorized the Church to construct a bell tower for its own use up to a height of 74 feet. It argues that because the county s zoning rules would accept the visual impact of a similar bell tower without a telecommunications antenna within it, it was not legitimate to reject T-Mobile s bell tower based on visual impact. But the fact that the Church would not need a special exception to construct a similar bell tower without a telecommunications facility in it does not imply that citizens tower. may not have legitimate objections to such a Moreover, T-Mobile fails to recognize that any zoning decision reflects a balance between the benefit provided by the facility and the aesthetic harm caused, and thus a local government might be willing to tolerate what is aesthetically displeasing for one type of use but not for another. The district court did not err in concluding that the Board s aesthetic reasons had substantial support in the record as a whole. New Cingular Wireless, 674 F.3d at 275. C 1 T-Mobile next argues that the Board s denial of its Bell Tower Site application had the effect of prohibiting it from providing personal wireless service, 25 in violation of § 332(c)(7)(B)(i)(II) construction, and ( The regulation modification of of the personal placement, wireless service facilities by any State or local government . . . shall not prohibit or have the effect of personal wireless services ). prohibiting the provision of The district court rejected T- Mobile s argument because T-Mobile failed to carry its burden of showing an effective absence of coverage, failed to demonstrate a lack of reasonable alternative sites, and failed to show that further efforts for alternative sites would be fruitless. To show prohibit[s] service, the the that a local service or government has the telecommunications regulation calls for regulation effect provider the of may rejection or decision prohibiting demonstrate of all that wireless facilities -- i.e., that a local governing body has a general policy that effectively facility applications. guarantees rejection of all wireless T-Mobile Northeast LLC v. Fairfax Cnty. Bd. of Supervisors, 672 F.3d 259, 266 (4th Cir. 2012). Or, if the local government rejects a facility at a single site, the telecommunications provider may demonstrate that the rejection was tantamount to a general prohibition (internal quotation marks omitted). of service. Id. To make that showing, the telecommunications provider must demonstrate (1) that there is an effective absence of coverage in the area surrounding the 26 proposed facility, and (2) that there is a lack of reasonable alternative sites to provide coverage or that further reasonable efforts to gain approval for alternative facilities would be fruitless. F.3d at 87-88). heavy when . Id. at 268 (citing Albemarle Cnty., 211 This burden is substantial and is particularly . . the [telecommunications provider] provides some level of wireless service to the area. already Id. The effective absence of coverage does not mean a total absence; it may mean coverage containing significant gaps. Albemarle Cnty., 211 F.3d at 87-88. defined metrically by simply See This cannot, however, be looking at the geographic percentage of coverage or the percentage of dropped calls. is a contextual purposes of the term that must take Telecommunications Act Rancho Palos Verdes, 544 U.S. at 115. Act announces promot[ing] services that competition ; for encourag[ing] American the technologies. We should goals. § among rapid its into itself. The . are . of new the . telecommunications deployment See City the of Telecommunications purposes secur[ing] consideration It goals higher of quality consumers ; and telecommunications Pub. Law. No. 104-104, 110 Stat. 56, 56 (1996). therefore frustrate these See City of Rancho Palos Verdes, 544 U.S. at 115. While 332(c)(7)(A) traditional not read preserves authority to § 332(c)(7) state regulate 27 and the to local design authorities and siting of wireless facilities, the express limitations of § 332(c)(7)(B) promote the purposes of services and encouraging securing new higher technology. quality See wireless also City of Rancho Palos Verdes, 544 U.S. at 115. The technology of 10 years ago may have only supported wireless service that had substantial gaps in coverage and high dropped call rates. But the technology of today supports increased wireless coverage with reduced rates of dropped calls. On this trajectory, the technology of tomorrow may support 100% coverage with no dropped calls, and the focus may instead be on subtler issues about particular uses. the nature and strength of signals for The Telecommunications Act clearly intends to encourage this technological development and, to that end, to protect such development from interference from state and local governments when facilities. This is manifested in § 332(c)(7)(B). construing the 332(c)(7)(B)(i)(II), approving level we the of must design service take a at 267 (observing that reviewing location of Thus, in protected contextual cannot rely on any specific formula. F.3d and by § approach and See Fairfax Cnty., 672 courts should not be constrained by any specific formulation, but should conduct a fact-based analysis of the record, as contemplated by the Act ). 28 2 Even though we affirm the Board s decision on the ground that T-Mobile failed to show that there was a lack of alternative sites from which to provide coverage or that further efforts to gain approval for alternative facilities would be fruitless -- as we explain below -- we nonetheless also address T-Mobile s effort to establish an effective absence of coverage at the Bell Tower Site. This issue is one that was at the core of the parties arguments and, even with our affirmance on the basis of the alternative-sites issue, the issue of effective coverage remains facilities at open as alternative T-Mobile sites in makes the efforts same to area and pursue again attempts to demonstrate an effective absence of coverage. In this case, T-Mobile provided evidence that it had a dropped call rate of 1.82% in the area of the Bell Tower Site and an access failure rate of 2.8% in buildings within that area. Court The district court, noting that [t]he Fourth Circuit of Appeals has not directly resolved the question of precisely what minimum level of wireless service is adequate under subparagraph B(i)(II), relied primarily on these droppedcall rates in holding that T-Mobile failed to meet its burden of demonstrating a question of fact as to its absence of coverage. But providing dropped-call coverage rates. may be more T-Mobile 29 also than simply provided ensuring evidence low from advanced computer propagation modeling and actual drive test data of what its expert called a significant gap in in- building coverage in the area of the Bell Tower Site, an area consisting of approximately 1.4 square miles, in which there are approximately 10,536 residents. Its expert testified that this level of signal strength effectively prohibited it from providing acceptable buildings. personal wireless service inside of The expert witness testified that consumers demand to be able to reliably make and maintain wireless calls, and in some cases, to access wireless data service, within their homes and offices and that if T-Mobile lacks sufficient signal strength to reliably provide service in buildings, it is not, from a consumer s perspective, providing service. In computer contrast, the propagation Board s modeling expert study, conducted using a separate different methods than T-Mobile, and found fewer gaps in service than T-Mobile did. We are not in a position to assess the relative merits of those studies here, but the Board s expert acknowledged that if you accept T-Mobile s definition of reliable and if you accept their methodology at arriving at their definitions of signal strength threshold, then . . . there are areas around . . . the Church site, that do not have reliable in-building service at some locations at some time. disagreed with T-Mobile s When asked directly whether she conclusion 30 that it was unable to provide reliable in-building service around the Church site, the Board s expert witness responded, I think that is an open question. We conclude that this evidence is sufficient to create at least a factual question about the effective absence of coverage at the Bell Tower Site and therefore that the district court should not have resolved that question against T-Mobile as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). 3 As we have already indicated, T-Mobile failed to satisfy the second prong for showing an effective absence of coverage at a particular site -- that is, it failed to show that there was a lack of reasonable alternative sites from which to provide coverage or that further reasonable efforts to gain approval for alternative facilities would have been fruitless. Fairfax Cnty., 672 F.3d at 266. T-Mobile claimed that any alternative sites were inadequate because they were not of sufficient height. that constructing provide some multiple improvement respective areas. identified numerous antennas of at coverage But it conceded reduced . . . heights would within their The Board s expert witness went further and other sites capable of providing the enhancement of service desired by T-Mobile, including both new 31 and existing structures. And she asserted that antennas at a combination of two sites -- one to the northeast of the Bell Tower Site and another to the southwest of the Site -- would provide better service than one alone at the Bell Tower Site. While T-Mobile did alternative sites alternative sites dispute the separately, would, efficacy it in failed the of to many aggregate, the that show of the not provide sufficient coverage. The district court also determined that T-Mobile failed to show that attempting to place its wireless alternative sites would have been fruitless. The Board identified alternative facilities at We agree. sites that would not require the construction of free-standing monopoles or towers, but would require the collocation of T-Mobile s wireless facilities on existing buildings, a preferred location under the County s Telecom Plan. Based on our review of the record, we do not believe that the district court erred in its finding that T-Mobile [had] cite[d] no provision in the Zoning Ordinance or Comprehensive Plan suggesting that any efforts to collocate wireless facilities on the existing structures . . . would be fruitless. We thus T-Mobile, 903 F. Supp. 2d at 402. conclude that on this record, T-Mobile did not carry its substantial burden of demonstrating that alternative sites were not available to remedy the deficiency in coverage 32 that it had identified. Accordingly, we affirm the district court s conclusion that the Board s denial of the application for the Bell Tower Site did not cause an effective prohibition of service in the area. D Finally, T-Mobile contends that the Board made its decision regarding the Bell Tower Site in part on the basis of the environmental effects of radio frequency emissions, in violation of § 332(c)(7)(B)(iv). It argues that the overwhelming focus of the public comment both explicitly and indirectly centered on the fears denied of the radio Bell frequency Tower Site emissions based on and that the residents Board concerns regarding the health effects of RF emissions, while concealing that reason behind the veil of visual impact. The record shows that citizens did voice objections to the Bell Tower Site on the basis of health concerns. But the Act does not prohibit citizens from expressing such concerns; it prohibits the Board s acting on them. See T-Mobile Northeast LLC v. City Council of Newport News, 674 F.3d 380, 390 (4th Cir. 2012). for Moreover, the record also shows that citizens objected other reasons, all of which were legally valid. They worried about reductions in the value of their properties; they pointed out that other local 33 communities prohibited telecommunications towers in residential areas; and they articulated specific aesthetic complaints. While the record does indicate that one Board member voiced concerns about application environmental process, there health is no effects evidence during that the the Board discussed including health effects as a reason for denying TMobile s application. Nor did the Board s written order refer to radio frequency emissions as a reason for its decision. At bottom, unlike the evidence presented in connection with the Silo Site, there is simply no evidence to indicate that the Board relied on radio frequency emissions in reaching its decision on the Bell Tower Site, and T-Mobile s argument can only be speculation. Accordingly, we reject it. V In sum, we conclude that the Board s decision to deny TMobile s Bell Tower Site application was supported by substantial evidence; did not have the effect of prohibiting the provision of personal wireless services in view of the possibility of other alternatives; and was not made on the basis of health concerns about radio frequency emissions. And as to the Silo Site, we conclude that while the aesthetic concerns that the supported Board by gave for substantial denying evidence, 34 T-Mobile s its application decision to base were the denial of T-Mobile s application on improper environmental concerns about radio frequency emissions was prohibited by the Act. A remand would not eliminate those concerns from consideration of T-Mobile s application. Accordingly, the judgment of the district court with respect to both Sites is AFFIRMED. 35 AGEE, Circuit Judge, concurring: I agree judgment. need not that we should affirm the district court s However, I write separately to underscore that we and do not reach and decide one particular issue: whether the district court correctly determined the effectiveabsence-of-coverage issue. To affirm the district court s judgment on T-Mobile s effective-prohibition claim, it is enough for us to say that there were reasonable alternative sites and efforts to secure permits for those sites would not have been fruitless. By going further, we stray into the practice of advisory opinion-making, solving questions that do not actually require order to resolve the matters before [us]. answering in Karsten v. Kaiser Found. Health Plan of Mid-Atl. States, 36 F.3d 8, 11 (4th Cir. 1994). Yet the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions. Flast v. Cohen, 392 U.S. 83, 96 (1968) (quotation marks omitted). Respectfully, then, I do not join Part IV.C.2 of Judge Niemeyer s opinion or the portion of Part IV.C.1 of his opinion that addresses the effective-absence-of-coverage 36 issue. I conclude that these sections - which are not part of the opinion of the Court -- offer an advisory opinion. * * Even if those portions were part of the opinion of the Court, they would still be nothing more than non-binding dicta. See Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir. 1999) ( Dictum is [a] statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding -- that, being peripheral, may not have received the full and careful consideration of the court that uttered it. (quotation marks omitted)). 37 WYNN, Circuit Judge, concurring in part and dissenting in part: While I otherwise agree with the majority opinion, I cannot agree with Part III or with the portion of Part IV.C.1 that discusses the effective absence of coverage telecommunications provider s burden. aspect of a As noted on the cover page of the opinion, Part IV.C.2 does not constitute the opinion of this court. The discussion in Part IV.C.1 regarding effective absence of coverage is, therefore, dicta because we do not decide whether T-Mobile established an effective absence of coverage. Put differently, because we affirm the Board s decision on the ground that T-Mobile failed to show both a lack of alternative sites and that further efforts to gain approval of alternative sites would be fruitless, the discussion pertaining to the effective absence of coverage in Part IV.C.1 is unnecessary to the holding of this case. Therefore, I decline to join Part IV.C.1 s dicta regarding effective absence of coverage. Regarding Part III of the majority opinion, I must dissent because it separate fails and to fully distinct consider land use the significance entitlements the of two special exception permit and the commission permit. Although the Board of the Supervisors special ( Board ) exception frequency permit emissions, the improperly denied based on its Board provided 38 Stephens Silo about radio and valid concerns distinct reasons for denying the Stephens Silo commission permit. Neither the majority nor the district court has sufficiently explained how it is that the improper special exception denial somehow taints the separate and distinct commission permit denial, which alone would have been sufficient to bar T-Mobile from constructing its Stephens Silo project. Because I would reverse the district court s order that the Board grant both permits, I must respectfully dissent from Part III of the majority opinion. I. Focusing on the facts that pertain to the Stephens Silo site, T-Mobile wanted to construct a wireless telecommunications facility on a farm in Lovettsville, Loudoun County, Virginia. Loudoun County s land use regulations required two separate land use entitlements before construction: a commission permit and a special exception. The Board and the Planning Commission make decisions on whether guided to by grant the Comprehensive such policies Plan and entitlements. and In regulations Zoning 1 doing in Ordinance. 1 so, they are Loudoun County s Loudoun County s The State of Virginia requires every governing body [to] adopt a comprehensive plan for the territory under its jurisdiction. Va. Code Ann. § 15.2-2223(A). The purpose of a 39 Comprehensive Plan contains a Telecommunications Facilities Plan ( Telecom Plan ), which explains that its overarching goal is to encourage improvements in telecommunications services while mitigating the impacts on . . . residents, nearby land uses, scenic beauty, and rural heritage. is generally intended to J.A. 314. ensure The Telecom Plan compatibility of telecommunication facilities with nearby land uses by requiring collocation of facilities whenever possible, establishing design criteria and removal provisions, and creating a process by which an applicant can demonstrate their compliance with these policies. The J.A. 314 15. Telecom Plan contains specific policies designed to mitigate the visual impact that antennas, towers, and monopoles have on the historic character of the rural . . . areas. 318. J.A. Of note here, the County prefers locating new antennas on existing towers, monopoles or other tall structures[,] and [w]hen existing structures cannot be used, new monopoles or towers should be sited within the right-of-way for overhead comprehensive plan is to guid[e] and accomplish[] a coordinated, adjusted and harmonious development of the territory to best promote the health, safety, morals, order, convenience, prosperity and general welfare of the inhabitants . . . . Id. A zoning ordinance is a method of implementing the comprehensive plan. Id. § 15.2-2224(B)(4). 40 utility transmission lines where the visual additional tall structure would be minimal. All meet telecommunication specified criteria Comprehensive Plan. facilities to in impact an J.A. 318. Loudoun demonstrate of County compliance must with the The procedural mechanism for ensuring such compliance is the commission permit, which certifies that the proposed project is substantially in accord with the adopted Comprehensive Plan. 1101(A). Loudoun Cnty., Va. Zoning Ordinance § 6- In some zoning districts, telecommunication facilities are permitted by right[.] But in other zoning districts, the Board has determined that telecommunication facilities have the potential for a deleterious impact upon the health, safety, and welfare of the public[.] telecommunication district, the facility proponent Id. is must projects that are 5-618(B), proposed obtain addition to a commission permit. of §§ a in 6-1301. such special to a special a zoning exception Id. § 5-618(B)(2). subject a If in Proponents exception must demonstrate compliance with criteria beyond those required for a commission permit. Id. § 5-618(B)(3). Ultimately, whether to grant a special exception is in the Board s discretion. Id. § 6-1301. The Stephens Silo site, located in the AR-1 district, required a special exception in addition to a commission permit. When the Stephens Silo proposal came before the Board on October 41 17, 2011, the Board voted to overturn the Planning Commission s approval of application the for commission a special permit exception. and to The deny Board T-Mobile s articulated different reasons for the denials: Commission Permit 1. The proposed project is not fully consistent with the land use policies of the Revised General Plan and Strategic Land [U]se Plan for Telecommunications Facilities (Telecommunications Plan). The 1996 Strategic Land Use Plan for Telecommunications Facilities recommends any new commercial telecommunication antennas in the rural areas first locate on existing towers, buildings, or other tall structures within a two (2) mile radius. . . . 2. Currently there are existing agricultural silos within a two (2) mile radius on which to locate telecommunications antennas which are preferred locations as outlined in the Telecommunications Plan. Special Exception 1. The proposed design and siting has not mitigated its significant structural presence, thus creating an unnecessary visual impact on surrounding properties. 2. The proposed silo height of 90-feet does not blend with the natural and built environment of the surrounding area. The height and appearance is not in keeping with the silos and other farm structures in the immediate vicinity. 3. A denial does not have the effect of prohibiting the provision of personal wireless services in this area of the County, with current service available from T-Mobile and others. . . . Supervisor Miller made a friendly amendment to include negative environmental impact as the fourth reason for denial of the SPEX 2010-0020. J.A. 1180 81. 42 II. Thus, the Board articulated separate and distinct reasons for denying each permit. Regarding the commission permit, the reasons given for its denial are directly related to the rural location policies contained in the Telecom Plan. In denying that permit, the Board did not exercise discretion; rather, it made a finding that T-Mobile s proposal failed to comply with the Comprehensive Plan a prerequisite to obtaining a commission permit. 2 And because T-Mobile could not construct the facility without first obtaining both permits, the lack of a commission permit would have been sufficient to preclude T-Mobile from building its Stephens Silo project. The majority opinion dismisses this nuance regarding Loudoun County s permitting procedures as a mere formality. However, I must agree with the County that T-Mobile could not 2 The majority opinion and the district court find it significant that the Board overturned the Planning Commission s approval of the commission permit. But this fact is unremarkable for two reasons. First, the Zoning Ordinance makes clear that the Board has the authority to overturn decisions of the Planning Commission. Loudoun Cnty., Va. Zoning Ordinance § 6-1104. Second, T-Mobile had justified its decision not to locate its facilities on nearby silos on the bases that the nearby property was in foreclosure and that efforts to negotiate with the owner were to no avail. J.A. 1511. But the Board knew that the property had emerged from foreclosure, and TMobile had made no attempt to negotiate with the new owners. Thus, T-Mobile failed to demonstrate to the Board s satisfaction that it used its best efforts to comply with the Comprehensive Plan s rural location policies. 43 construct its facility without the commission permit and that the denial of the special Appellant s Br.at 37. majority opinion has exception was thus superfluous. And neither the district court nor the explained how it is that the improper superfluous denial tainted or in any way impacted the proper and supported commission permit denial. In sum, I agree with the majority opinion regarding the Board s denial of the special exception. concerns about radio frequency That denial based on emissions, which the Telecommunications Act unequivocally places beyond consideration by local governments was improper. However, I fail to see how that invalid denial necessarily taints the proper denial of the separate, distinct, and additionally required commission permit especially when the district court held that the County s denial of the commission permit was supported by substantial evidence. 3 Therefore, I must respectfully dissent from that part of the majority opinion that affirms the district court s order 3 The majority opinion and the district court express concerns regarding the effectiveness of remanding this matter to the Board. However, such concerns are present whenever the Court orders relief, and nothing suggests that Loudoun County would flout an order of this Court. Assuming otherwise at the expense of local procedures places us in the position of substituting our judgment for that of the local planning agency and sitting as a zoning board of appeals[.] Pomponio v. Fauquier Cnty. Bd. of Supervisors, 21 F.3d 1319, 1327 (4th Cir. 1994) (en banc) (overruled on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)). The job of making land use decisions is not ours; it belongs solely to local officials. 44 forcing Loudoun County to grant T-Mobile a commission permit for the Stephens Silo site. And because Part IV.C.2 does not constitute the opinion of this court, I also decline to join the portion of Part IV.C.1 that discusses the effective absence of coverage aspect of a telecommunications provider s burden. 45
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