New Cingular Wireless PCS, LLC v. The Fairfax County Board of Supervisors
Filing
34
MEMORANDUM OPINION: Accordingly, for all these reasons, the Court will deny Cingular's Motion for Summary Judgment, grant the Fairfax County Board of Supervisors' Motion for Summary Judgment, and enter judgment in favor of the Board in an Order to be issued along with this Memorandum Opinion. Signed by District Judge Leonie M. Brinkema on 11/10/10. (yguy)
New Cingular Wireless PCS, LLC v. The Fairfax County Board of Supervisors
72
Doc. 34
Lr
NOV I 0 2010
IN T H E U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E
EASTERN DISTRICT OF VIRGINIA Alexandria Division
CLERK, US DISTRICT COURT
ALEXANDRIA. VIRGINIA
N E W C I N G U L A R W I R E L E S S PCS, LLC,
d/b/a AT&T MOBILITY Plaintiff,
1:10CV283(LMB/IDD)
FAIRFAX COUNTY BOARD OF
SUPERVISORS
Defendant.
MEMORANDUM OPINION
Before the Court are the parties' cross-motions for summary
judgment. For the reasons discussed below, the plaintiff's motion
will be denied and the defendant's motion granted.
I. Background
This civil action concerns the denial of an application by New Cingular Wireless PCS, LLC ("Cingular") for a special exception
permit to build a wireless telecommunications facility on the
grounds of the Mount Vernon Masonic Lodge #219, located at 8717 Fort
Hunt Road, Alexandria, Virginia 22308 ("the proposed site").
Cingular is a telecommunications company doing business as AT&T
Mobility, which made several related proposals to construct a
wireless tower on the proposed site in an effort to improve its cellular coverage in the Fort Hunt area. The Fairfax County Board of Supervisors ("Fairfax Board"), however, rejected Cingular's
Special Exception Application for the proposed wireless tower. In
Dockets.Justia.com
response, Cingular brought this lawsuit alleging violations of the
Telecommunications Act.
Cingular first submitted its application for a special use
exception on or about May 19, 2008, seeking the Fairfax Board's
approval to permit construction of an 85-foot high wireless
telecommunications flagpole, antennas, and related ground equipment ("the flagpole facility") at the proposed Masonic Lodge site, which
is located in the middle of a residential district.
Cingular
simultaneously submitted another zoning application to the Fairfax
County Planning Commission ("Planning Commission"), seeking a
determination as to whether the construction of the proposed
cellular flagpole substantially conformed to the County's
Comprehensive Plan, as required by Va. Code Ann. § 15.2-2232. On
approximately August 12, 2009, Cingular amended its application to replace the proposed flagpole facility with a proposal for an 88-
foot tall monopole designed to look like a tree ("the treepole").
Cingular also represented that all necessary telecommunications
equipment would be enclosed in an equipment shed that would be
designed to resemble the architecture of the Masonic Lodge.
On September 24, 2009, the Planning Commission held a public
hearing on Cingular's application. Several individuals who live
near the proposed site testified at that hearing in opposition to
the construction of the wireless tower. Nevertheless, the Planning
Commission found that the proposed facility substantially conformed
to the Comprehensive Plan, in accordance with Va. Code Ann. § 15.2-
2232.
Accordingly, the Planning Commission made a recommendation to
the Fairfax Board, the final decisionmaker, for approval of
Cingular's Special Exception Application.
On February 23, 2010, the Fairfax Board conducted a public
hearing on Cingular's proposed facility.
During the hearing, Gerald
W. Hyland, a Supervisor in the Mount Vernon District, submitted a
petition opposing the proposed facility.
The petition was signed by
forty-seven residents of Fort Hunt neighborhoods and other nearby
communities, all of which are in close proximity to the proposed
site.
Supervisor Hyland also submitted a sign-in sheet signed by
At the
twenty-one community members who had attended a community meeting
held to address their opposition to the proposed facility.
conclusion of the hearing, the Fairfax Board voted, by a vote of 6-
2, to deny Cingular's Special Exception Application.1 Among the
reasons for the denial, the Board cited concerns that the facility
did not conform to the Comprehensive Zoning Plan and the residential
character of the surrounding community, that Cingular had failed to
adequately pursue other possible locations for its wireless
facility, and that the proposed flagpole or treepole would have a
substantially adverse visual impact on adjacent residential areas. On February 24, 2010, the Clerk of the Fairfax Board issued a formal
letter to Cingular's representative, stating that the Board had
denied Cingular's Special Exception Application.
not present. Only Supervisors John C. Cook and Pat Herrity voted against the motion to deny Cingular's Special Exception Application
One Board member abstained from the vote, and another was
On M a r c h 23, 2010, C i n g u l a r f i l e d this l a w s u i t u n d e r the
Telecommunications Act.
Specifically, Cingular alleges that the
Fairfax Board's denial of Cingular's Special Exception Application
was not a decision supported by substantial evidence in the written
record, and that the denial therefore violates 47 U.S.C.
§ 332(c)(7)(B)(iii).
Cingular also argues that the Board's denial
of the Special Exception Application completely prohibits Cingular
from providing personal wireless services, in violation of 47 U.S.C.
§ 332(c) (7) (B) (i) (II) .
On September 16, 2010, this Court ordered that the Fairfax
Board provide a full written opinion explaining the reasoning for
its denial of Cingular's application.
That written opinion, along
with a Joint Appendix containing supporting exhibits, was adopted at
a public hearing of the Board on September 28, 2010, and was filed
with the Court on October 4, 2010.
cross-motions for summary judgment.
II. Standard of Review
The parties then filed their
Summary judgment is appropriate where the record demonstrates
"that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.
Civ. p. 56(c). A genuine issue of material fact exists only "if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Anderson v. Liberty Lobby. Tr^ 477 tj.s. 242, 247-48 (1986). The Court must view the record in the light most
See Bryant v. Bell Atl. Md.. favorable to the nonmoving party.
Inc., 288 F.3d 124, 132 (4th Cir. 2002).
However, the "mere
existence of a scintilla of evidence in support of the [nonmovant's]
position will be insufficient; there must be evidence on which the
jury could reasonably find for the [nonmovant]."
Anderson. 477 U.S.
at 252; see also Othentec Ltd. v. Phelan. 526 F.3d 135, 140 (4th
Cir. 2008).
Moreover, the mere existence of some alleged factual dispute cannot defeat a motion for summary judgment. Rather, the dispute
must be both "material" and "genuine," meaning that it must be
capable of changing the outcome of the lawsuit.
132.
Bryant, 288 F.3d at
If a nonmoving party bears the burden of proof on a claim at
trial, the moving party may prevail on its Rule 56 motion by showing
that there is a lack of evidence to carry the other party's burden
as to a n y e s s e n t i a l e l e m e n t of the c a u s e of action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Cray Commc'ns Inc. v.
Novatel Computer Svs.. Inc.. 33 F.3d 390, 393-94 (4th Cir. 1994).
Once the moving party has met its burden of demonstrating the
absence of an issue of fact, the party opposing summary judgment may
not rest on mere allegations or inferences, but must instead proffer specific facts or objective evidence showing that a genuine issue
exists requiring further proceedings. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp.. 475 U.S. 574, 586 (1986).
III.
Discussion
Summary judgment in favor of the defendant, the Fairfax County
Board of Supervisors, is appropriate in this case because the
Board's decision to deny Cingular's Special Exception Application
was a decision in writing supported by substantial evidence in the
record, as required b y the T e l e c o m m u n i c a t i o n s Act, 47 U.S.C.
§ 332(c)(7)(B)(iii).
Specifically, the Fairfax Board reached a
reasonable decision to deny Cingular's application on the basis of a
determination that the proposed telecommunications facility was not in harmony with the local Zoning Ordinance and the County's
Comprehensive Plan, that community residents were understandably
o p p o s e d to t h e c o n s t r u c t i o n o f a t e l e c o m m u n i c a t i o n s t o w e r i n t h e
middle of a residential area, and that the proposed flagpole or
treepole facility would be highly visible at the proposed site and
would depress local p r o p e r t y values. All of these reasons, taken
together, s u b s t a n t i a l l y s u p p o r t the F a i r f a x B o a r d ' s denial of
Cingular's land use application.
Furthermore, the Fairfax Board's denial did not amount to a
blanket ban on wireless facilities, as prohibited by 47 U.S.C.
§ 332(c)(7)(B)(i)(II), particularly in light of evidence of the Board's previous approval of numerous zoning applications for
telecommunications facilities, including at least three of
Cingular's own telecommunications facilities in the vicinity of the
p r o p o s e d site.
A.
Telecommunications Act
The Telecommunications Act preserves the authority of local
boards and councils to regulate the placement and construction of
wireless facilities in accordance with local zoning plans.
Section
704(c)(7) of the Act, codified at 47 U.S.C. § 332(c)(7), is entitled
"Preservation of local zoning authority," and subsection (A)
provides in relevant part:
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions
regarding the placement, construction, and modification of
personal wireless facilities.
Id^. The primary limitations on such authority are that any decision
by a state or local government to deny a request to construct a
wireless service facility "shall be in writing and supported by
substantial evidence contained in a written record," 47 U.S.C.
§ 332(c)(7)(B)(iii), and must not "prohibit or have the effect of
prohibiting the provision of personal wireless services," 47 U.S.C.
§ 332(c)(7)(B)(i)(II).
The Fourth Circuit has defined "substantial evidence" as "such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." 360° Commc'ns Co. v. Bd. of Supervisors of
Albemarle County, 211 F.3d 79, 83 (4th Cir. 2000); see also AT&T
Wireless PCS. Inc. v. City Council of Va. Beach. 155 F.3d 423, 430
(4th Cir. 1998) . Although "substantial evidence" is more than a
mere scintilla, it is less than a preponderance of the evidence.
Va. Beach, 155 F.3d at 430. Moreover, the substantial evidence test
is deferential to the local authorities in that the reviewing court
s h o u l d n o t r e - w e i g h the e v i d e n c e o n w h i c h a B o a r d ' s d e c i s i o n was
based, nor substitute its decision for that of the local
governmental authority.
Id.
Rather, a court must uphold a decision
that has substantial support in the record as a whole, even if that
court might have decided the original matter differently.
a l s o A T & T W i r e l e s s PCS. I n c . v. W i n s t o n - S a l e m Z o n i n g Bd. of
Id.; see
Adjustment. 172 F . 3 d 307, 314 (4th Cir. 1999).
The Telecommunications Act therefore reflects Congress's desire
to assure the introduction of competitive wireless services, while
at the same time preserving local zoning authority and ensuring
significant local control over the construction of the physical
wireless facilities themselves. See Va. Beach. 155 F.3d at 428-29.
Accordingly, 47 U.S.C. § 332(c)(7) strikes a "balance between the
national interest in facilitating the growth of telecommunications and the local interest in making zoning decisions." Albemarle
County, 211 F.3d at 86.
In fashioning such a compromise, Congress
was mindful of the broad powers that localities have enjoyed to
implement zoning and other land use controls to protect the public
health, safety, convenience, a n d welfare. S e e Vill. of E u c l i d v.
Ambler Realty Co., 272 U.S. 365 (1926); Pomponio v. Fauouier County
Bd. of Supervisors. 21 F.3d 1319, 1327 (4th Cir. 1994). The
T e l e c o m m u n i c a t i o n s A c t is t h e r e f o r e not i n t e n d e d to a f f e c t or
encroach upon the substantive standards to be applied under
established principles of state and local zoning laws.
Under Virginia law, the zoning power granted to local governing bodies includes the authority to: (1) adopt a Comprehensive Plan
pursuant to Va. Code Ann. § 15.2-2223 (2008); (2) regulate,
restrict, permit, and prohibit the use of land and the size, height,
location, and construction of certain structures, Va. Code Ann. §§
15.2-2280(l)-(2) (2008); and (3) allow certain uses by special exception, subject to suitable regulations and safeguards and to
overall conformity w i t h the Comprehensive Plan, Va. Code Ann. §
15.2-2286(A)(3) (Supp. 2010).
Under this enabling authority, the
r e l e v a n t Z o n i n g O r d i n a n c e a u t h o r i z e s the l o c a t i o n o f
telecommunications facilities in districts zoned as residential only
by s p e c i a l e x c e p t i o n b e c a u s e s u c h a u s e is c o n s i d e r e d to h a v e a
greater impact upon neighboring properties and the public than those
uses permitted by right. See Zoning Ordinance § 9-0001; Bd. of
Supervisors of Fairfax County v. Southland Corp.. 224 Va. 521, 522
(1982) .
B. Substantial Evidence
The Fairfax Board's decision to deny Cingular's Special
Exception Application was a decision in writing supported by
substantial evidence in the written record, as required by the
Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii).
As early as
February 24, 2010, the Board sent a written letter to a Cingular
representative documenting its denial of Cingular's application.
The Board also prepared an accurate verbatim transcript of its February 23, 2010 hearing, as well as a written record containing
materials submitted by Cingular, correspondence in support of and in
opposition to the proposed wireless construction, and the text of
the relevant local zoning ordinance and other zoning guidelines. Furthermore, the Board adopted a written opinion on September 28,
2010, setting forth the rationale for its decision, and filed that
opinion with this Court on October 4, 2010.2
In this case, the written record, taken as a whole, provides
substantial evidence to support the Fairfax Board's conclusions.
First, the Board identified a number of ways in which Cingular's
proposed wireless facility would not be in harmony with the zoning
objectives and the Comprehensive Plan for that geographical area.
For example, the "Public Facilities" element of the Policy Plan,
which is part of the larger Comprehensive Plan, expresses a clear preference for locating wireless facilities on existing structures,
such as building rooftops, water storage facilities, and electrical
utility poles, rather than constructing new freestanding facilities.
See Joint App. ["J.A."] at 110. Furthermore, if a new structure is
required, Objective 42(c) of the Policy provides that public lands
should be considered "as the preferred location for new structures."
Id^. at 111.
Finally, the Comprehensive Plan repeatedly refers to a
requirement that any wireless facility be designed and located to
Cingular argues that the written opinion is a post hoc
rationalization that cannot be considered part of the "written record" in this case for Telecommunications Act purposes. However,
in Winston-Salem, the Fourth Circuit rejected that precise line of' argument, determining that a Zoning Board's formal opinion was part
of the relevant written record even though it was issued after litigation commenced and months after the Board's public hearing
172 F.3d at 315.
10
minimize its visual and any other impact on the character of the
chosen property and the surrounding areas.
See Objectives 42(b) &
42(h) (quoted in J.A. at 92, 110).
In fact, Objective 42(i) of the
Policy Plan explicitly mandates that when making a decision to grant
or deny special use permits for wireless facilities, the Board must:
Demonstrate that the selected site for a new monopole and tower p r o v i d e s t h e l e a s t v i s u a l i m p a c t on residential areas and the public way [and] [a]nalyze the potential impacts from other vantage points in the area to illustrate that the selected site provides the best
opportunity to m i n i m i z e t h e v i s u a l i m p a c t of the proposed
facility.
J.A. at 92 (emphasis added).
U p o n close e x a m i n a t i o n of the evidence, the F a i r f a x B o a r d
reasonably determined that Cingular's proposed wireless facility,
whether erected as an 85-foot flagpole or an 88-foot treepole, did
not conform to the requirements of the local Zoning Ordinance and
the Comprehensive Plan. Cingular proposed to locate its wireless
tower in the middle of an R-3 residential district, in close
proximity to a number of single-family homes.
Moreover, the
proposed design required the construction of a new, freestanding
physical structure, which would be placed on private property instead of on public land and which was likely to be highly visible and to have a substantially adverse visual impact on nearby
residential areas.
See Bd. of Supervisors' Written Op. Supporting
its Denial of SE 2008-MV-031 [Cingular's Special Exception
A p p l i c a t i o n ] a t 3-8.3
3 Cingular has represented that its latest proposal for an
88-foot high treepole would be inconspicuous and would blend
11
Under Fourth Circuit authority, a proposed telecommunications
facility's inconsistency with local zoning requirements can be
sufficient to establish substantial evidence supporting the denial
of a zoning application. See Albemarle County. 211 F.3d at 84
(citing a proposed tower's inconsistency with the Comprehensive
Plan, an Open Space Plan, and the County's Zoning Ordinance as
evidence in the record supporting a denial of a special use permit);
see also Winston-Salem. 172 F.3d at 315 (concluding that there was
substantial evidence in the record supporting the Zoning Board's
denial of a special use permit when the Board determined that the
proposed use was not in h a r m o n y with the area in which it was to be located). Accordingly, the Fairfax Board's determination that
Cingular's proposed wireless facility was not in harmony with the
z o n i n g p l a n a n d the r e s i d e n t i a l c h a r a c t e r of the F o r t H u n t
neighborhood was reasonable and is entitled to deference.
See
Fairfax County. 224 Va. at 522 (holding that the decision to grant
or deny a special exception is a purely legislative function, and
that the local legislative decision must be presumed to be valid);
into the nearby landscaping.
However, the Fairfax Board concluded,
based upon studies done in the area, that the treepole would be approximately thirty feet taller than the closest tree and would be
clearly visible from the homes of residents living near the proposed
site. Moreover, even if the tower were disguised to look like a tree, it would still be made of obviously synthetic materials, and
its "leaves" would neither change color in the fall nor fall off in the winter, as would those of the nearby deciduous trees. Local
residents therefore expressed valid concerns that the proposed
treepole would be an eyesore a n d would not "minimize the visual
impact," as required by the Comprehensive Plan.
12
see also Richardson v. C i t y of Suffolk. 252 Va. 336, 338 (1996); Bd.
of S u p e r v i s o r s v. P a l e s . 224 Va. 629, 6 3 7 - 3 8 (1983) .4
Moreover, the Fairfax Board properly considered the objections
of nearly fifty local residents who opposed the construction of
Cingular's proposed wireless tower on the grounds that it would be
a e s t h e t i c a l l y u n a p p e a l i n g a n d i n c o n s i s t e n t w i t h the r e s i d e n t i a l
character of the neighborhood, and would therefore likely lead to declining property values in the area. Such community members'
objections to the proposed facility are clearly part of the record
and were appropriately considered by the B o a r d w h e n it denied
Cingular's Special Exception Application.
See J.A. at 320-21, 324,
343-49, 366-79, 418-32; see also Bd. of Supervisors' Written Op. at
10. Particularly where a residential neighborhood is involved,
courts have held that residents' concerns that telecommunications
towers will lower property values are reasonable objections that the
local Board is expected to consider. See Cellco P'ship v. Bd. of
Supervisors. No. Civ. A. 7:04 CV 00029, 2004 WL 3113188, at *5 (W.D.
Va. J u l y 2, 2 0 0 4 ) .
Cingular has attempted to dismiss the community members' objections as merely speculative and generalized. However, the
record in fact reveals that the opposition to the proposed wireless
4 Cingular has argued that the Fairfax Board's conclusion
that the proposed treepole did not conform to the Comprehensive Plan
should be disregarded because the Planning Commission had previously reached a contrary decision. However, pursuant to Zoning Ordinance § 9-0006(1), the Fairfax Board is empowered - and indeed required to make its own de novo determination as to whether the proposed telecommunications facility conformed to local zoning requirements
a n d t h e C o m p r e h e n s i v e Plan.
13
facility was specific, organized, and grounded in valid concerns.
F o r example, o n e local resident, R. S t e v e n Niswander, o f f e r e d his
specific o b j e c t i o n that the "cell tower at the Mount V e r n o n Masonic
Lodge" would "hurt our property value, in a time w h e n values are
already greatly depressed." J.A. at 427. E-mails from individuals
who were unable to be present at the community hearing reveal that
other residents who live near the Masonic Lodge similarly opposed
Cingular's application, expressing concerns that construction of a
large telecommunications tower in their neighborhood would "create
hardships" for their families and "disrupt[]" the neighborhood "and
the country-like setting with large quiet lots." Id. at 418, 421-22
(e-mails from Michael Bush and Darci Vanderhoff).
Moreover, the
petition signed by forty-seven residents of the Fort Hunt area
states, in pertinent part, that "a cell phone tower and its accompanying facilities . . . do not belong in a residential
community such as ours."
Id. at 343-36.
Those objections are
eminently reasonable, and were properly considered by the Fairfax
Board in denying Cingular's Special Exception Application.
Cingular argues that those residents' objections to the proposed facility should be disregarded because they amounted to
"relatively little" opposition in comparison to the large number of
residents who would receive increased wireless service if the
treepole facility were constructed as planned.
See P L ' s Mot. for
Summ. J. at 9.
However, the number of persons opposing a proposed
telecommunications facility, standing alone, is not determinative.
14
Petersburg Cellular P'ship v. Bd. of Supervisors of Nottoway County.
205 F.3d 688, 695 (4th Cir. 2000). Rather, the validity of a
decision to deny a particular land use application turns on the
q u a l i t y of concerns about the proposal, not the quantity of
objectors.
See USOC of Va. R.A. #3 v. Montgomery County Bd. of
Supervisors, 343 F.3d 262, 266 (4th Cir. 2003) (upholding the denial
of a n a p p l i c a t i o n f o r a t e l e c o m m u n i c a t i o n s t r a n s m i s s i o n t o w e r
despite the submission of a petition signed by 100 people in favor
of the proposed tower and only one letter in opposition to the
tower).
Additionally, although Cingular points to evidence in the
record that some residents supported Cingular's proposal out of a desire for stronger cellular signals in the area, see J.A. at 40712, t h e r e is no e v i d e n c e t h a t t h o s e r e s i d e n t s l i v e n e a r the M a s o n i c
Lodge or would be in the direct line of sight for the proposed
cellular tower. By contrast, many of the residents who objected to
the proposed facility live in residences that adjoin the Masonic
Lodge or Fort Hunt Road, and from which the proposed treepole would
be highly visible. See id. at 421-22 (e-mail objections from a
resident who "shares a border with the lodge" and lives "in very
close, visual p r o x i m i t y to w h e r e the tower is s l a t e d to be
installed"); id. at 427 (e-mail objection from a resident whose
property "back[s] up to the Masonic Lodge").
In fact, as Supervisor
Hyland concluded at the public hearing, "it is fair to say that the
folks who live closer oppose the facility [more] than those [who]
15
don't live as close."
Id. at 320; see also P L ' s Mot. for Summ. J.
at 10 (admitting that "[t]he dissenters largely hailed from a small
area next to and behind the Proposed Site").
Given the proximity of
those residents' homes to the proposed site, the Fairfax Board acted reasonably in according significant weight to their concerns.
Finally, Cingular has repeatedly cited Bd. of Supervisors v.
Rowe, 216 Va. 128 (1975), in support of its argument that purely
aesthetic concerns cannot constitute substantial evidence supporting
the denial of an application for a special use permit. holding in Rowe is simply inapposite to this case. However, the
First, the
concerns expressed by Fort Hunt residents are not merely visual or
aesthetic in nature, but are instead concretely tied to such matters
as declining real estate values.
Moreover, Rowe merely stands for
the proposition that subjective aesthetic standards cannot be the
basis for the denial of a zoning application.
Specifically, in
Rowe, the Virginia Supreme Court held that a locality did not have
the authority to adopt an ordinance imposing vague and subjective
architectural design restrictions that required proposed designs to
be in "good taste." 216 Va. at 145. By contrast, the Fairfax Board
in this case rested its decision on an objective assessment that the
size, height, and location of Cingular's proposed structure would be
out of keeping with the R-3 residential zoning for the surrounding
geographic area. Virginia law specifically authorizes local
governments to regulate a n d restrict the use of land on the basis of
such objective criteria, and the Board was therefore well within its
16
authority under Va. Code Ann. §§ 15.2-2280(1)-(2)
such a determination. S e e Va. M e t r o n e t .
(2008) to make
Inc. v. Bd. of S u p e r v i s o r s
of James Citv County. 984 F. Supp. 966, 974 n.14 (E.D. Va. 1998)
(holding that for a Board's decision to be supported by substantial
evidence, "the proffered reasons must comport with the objective
criteria in existence (i.e., zoning regulations, permit application
policies, etc.)," not simply generalized aesthetic concerns). For
those reasons, the Fairfax Board's decision was supported by
substantial evidence in the record and will not be disturbed by this
Court.
C.
Blanket Ban on Wireless Service
Moreover, Cingular has not met its heavy burden of establishing
that the Fairfax Board's decision denying its Special Exception
Application amounted to a blanket prohibition on wireless service,
in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). The burden on
Cingular in mounting such a challenge is "substantial."
USOC of Va.
R.A. #3 v. Montgomery County Bd. of Supervisors. 343 F.3d 262, 268
(4th Cir. 2003).
Specifically, as the Fourth Circuit has held, the
burden "is a heavy one: to show from language or circumstances not
just that this application has been rejected," but that the denial
had the effect of "prohibiting the provision of personal wireless
services," and that "further reasonable efforts [to apply for
another location for the wireless facility] are so likely to be fruitless that it is a waste of time even to try." Albemarle
County, 211 F.3d at 88; see also Va. Beach. 155 F.3d at 428 (holding
17
that a telecommunications provider cannot prevail on a challenge to
an individual zoning decision absent a blanket prohibition or a
general ban, because any other interpretation of 47 U.S.C.
§ 332(c)(7)(B)(i)(II) "would effectively nullify local authority by
mandating approval of all (or nearly all) applications").
When a local governing body's denial of a permit application
does not prohibit or have the effect of prohibiting all personal
wireless service in the area, a prohibition on service claim fails.
M o n t g o m e r y County. 343 F . 3 d at 268. In fact, the F o u r t h C i r c u i t h a s
never found that a denial of an individual telecommunications permit
application amounts to a prohibition of service in violation of 47
U.S.C. § 332(c)(7) (B) (i)(II).
Rather, the Fourth Circuit has only
recognized the "theoretical possibility" that a specific zoning
decision, such as the denial of a special exception application, could constitute a blanket prohibition in the "unlikely"
circumstance in which service could literally only be provided from
one particular site. Montgomery County. 343 F.3d at 269 (quoting
Albermarle County. 211 F.3d at 86, and observing that "such a
scenario 'seems unlikely in the real world'").
Clearly, this
theoretical possibility does not apply to the instant case.
The crux of Cingular's allegation in Count II of its Complaint
is that the Fairfax Board's denial of its Special Exception
Application amounts to an effective ban on wireless facilities in
the Fort Hunt area.
However, Cingular cannot reasonably support
that position given that it already has three telecommunications
18
facilities in the vicinity of the proposed site, all of which had
p r e v i o u s l y b e e n a p p r o v e d b y the Fairfax Board. See Albemarle
County. 211 F.3d at 88, n.l (concluding that "[ojbviously, if
s e r v i c e is a l r e a d y p r o v i d e d in a n area, it w o u l d be d i f f i c u l t to
violate (B)(i)(II), which addresses only a prohibition on the provision of service."). In fact, Cingular already maintains at
least five wireless facilities throughout Fairfax County, including
at The Hunt at Fairfax Station, the Brandywine Swim Club in the
Braddock District, the George Washington Recreation Center in the
Mount Vernon District, the Mount Vernon Estate, and along Hunter
Mill Road.5 Moreover, Cingular currently provides wireless service
in the Mount Vernon and Fort Hunt areas.
In fact, its own coverage
maps submitted during the course of this litigation show that
Cingular already provides at least some existing coverage in those regions, although the coverage is not perfect and may include some
"dead spots." S e e J . A . a t 438, 444.
C o u r t s have c o n s i s t e n t l y c o n c l u d e d that w i r e l e s s s e r v i c e
providers are not required, nor are they legally guaranteed the
ability, to provide seamless coverage for all customers. See
Albemarle County. 211 F.3d at 87 (noting that regulations
contemplate the existence of dead spots because the
Telecommunications Act cannot require 100% coverage); see also
Sprint Spectrum. L.P. v. Willoth. 176 F.3d 630, 643-44 (2d Cir.
1999) (cited in Albermarle County) (recognizing that "denials of
5 T-Mobile also has several existing telecommunications sites in the same general area as Cingular's proposed site.
19
applications to provide service to fill coverage gaps that are
limited in number or size generally will not amount to a prohibition
of service"). Accordingly, the denial of a single application to
provide wireless service cannot give rise to a prohibition of
service claim merely because the proposed telecommunications
facilities are intended to provide or improve service where gaps exist. See Va. Beach. 155 F.3d at 425 (finding that a City
Council's denial of two cellular towers did not amount to a
prohibition of service, even though the applicants sought to fill
holes in service and to enhance existing service in areas with weak
c e l l u l a r signals).
Additionally, even assuming that Cingular has less than optimal
coverage in the Fort Hunt area, it still cannot meet its "heavy
burden" of demonstrating that the denial of this one particular
application is tantamount to a blanket prohibition on wireless
service. C i n g u l a r a r g u e s that the B o a r d ' s d e c i s i o n c o n s t i t u t e d a
denial of coverage because there are "simply no other feasible
alternatives to the Proposed Site."
30.
P L ' s Mot. for Summ. J. at 28,
However, it a p p e a r s t h a t t h e r e are i n f a c t s e v e r a l o t h e r
possible telecommunications sites in the area, which, while perhaps
not ideal from Cingular's perspective, would wholly or partially
meet its coverage objectives without posing the sorts of problems
that led to the Fairfax Board's denial of this particular
application.
20
For example, during the public hearing, the Fairfax Board
repeatedly mentioned the possibility of locating the proposed tower
on public land in the Fort Hunt National Park, an option which
Cingular rejected due to concerns that its application might take
y e a r s to process a n d w o u l d u l t i m a t e l y be denied. S e e J.A. at 317-
18.
However, Cingular has yet to even submit such an application to
Fort Hunt National Park authorities, and its concerns, which rest on
extrapolation from the fact that Verizon had difficulties locating
telecommunication facilities in Rock Creek Park and Great Falls
Park, are therefore entirely speculative at this point. Additionally, Cingular dismissed several potential alternative
sites, most of w h i c h w o u l d h a v e i n v o l v e d c o - l o c a t i o n of a w i r e l e s s
tower on top of an existing structure, because they would not have fully met its coverage objectives. See id. at 97, 115, 161, 317.
However, there is no evidence to demonstrate that Cingular could not at the very least have i m p r o v e d its coverage by locating a tower at one of those sites, or could possibly even have fully achieved its
desired coverage by employing other technologies or using several of
those other locations in combination. See, e.g.. J.A. 325
(statement by Supervisor Smyth at the public hearing on Cingular's
application, discussing new technologies allowing for the
construction of unobtrustive telecommunications facilities along utility poles in residential areas). Therefore, Cingular's argument
that there are "no other feasible alternatives" to the Masonic Lodge
s i t e is u n p e r s u a s i v e .
21
Finally, Cingular is incorrect in arguing that the Fairfax
Board was obligated to demonstrate that locating a wireless facility
in Fort Hunt National Park, or at any of the other possible sites,
would be less intrusive than locating the facility at the proposed
Masonic Lodge site. The Board is under no obligation to assist
C i n g u l a r in identifying the ideal location for its wireless towers.
Nor is the Board legally required to approve Cingular's desired
location simply so that it can meet its entire coverage objectives
with a single wireless facility.
Rather, the Board must merely
determine, based upon traditional zoning principles, whether
proposed facilities and special exception permits like Cingular's
should be approved or rejected.
(Supp. 2010).
See Va. Code Ann. § 15.2-2286(A)(3)
Moreover, the F o u r t h C i r c u i t has e x p l i c i t l y r e j e c t e d the argument that the T e l e c o m m u n i c a t i o n s Act requires local authorities
to approve the "least intrusive means to close a significant gap in
service," holding that such an interpretive rule "reads too much
into the Act" and "effectively creates a presumption, shifting the
burden of production to the local government to explain its
reasoning for denying such an application."
F.3d at 87.
Albemarle County. 211
In fact, as the Fourth Circuit explained, under the
Telecommunications Act, "[a] community could rationally reject the
least intrusive proposal in favor of a more intrusive proposal that
provides better service or that better promotes [the] goals of the
community." Id. That is exactly what the Fairfax Board did here:
22
it considered the local Zoning Ordinance and the Comprehensive Plan,
the residential character of the surrounding community, and the
objections of numerous community members, a n d t h e n made the
reasonable decision that placing a wireless facility at the Mount
Vernon Masonic Lodge would be inappropriate. The Fairfax Board
plainly did not impose a blanket ban on wireless coverage in the
area, and Cingular remains free to reapply for a telecommunications
facility at a different location in the area which more closely
conforms to the Zoning Ordinance and the objectives of the
C o m p r e h e n s i v e Plan.
IV. Conclusion
Accordingly, for all these reasons, the Court will deny
Cingular's Motion for Summary Judgment, grant the Fairfax County
Board of Supervisors' Motion for Summary Judgment, and enter
judgment in favor of the Board in an Order to be issued along with
this M e m o r a n d u m Opinion.
Entered this
10
day of November, 2010
Alexandria, V i r g i n i a
*_/ Leonie M. Brinkema ^
United States District Judge
23
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