Decision by U.S. Court of Appeals in Favor of County in 360^o Communications Company of Charlottesville v. the Board of Supervisors of Albemarle County...

Amici curiae briefs were filed in this case by Appalachian Trail Conference, Piedmont Environmental Council, Citizens for Fauquier County, Scenic America, Local Government Attorneys Association of Virginia, Virginia Association of Counties, and Virginal Municipal League.

The U.S. 4^th Circuit Court of Appeals decided in favor of Albemarle County in an appeal by the County of a District Court decision directing the County to issue a special use permit to 360^o Communications for a cellular tower on Dudley Mountain.  The District Court had concluded that the Board of Supervisors' denial of the 360^o Communications application for a special use permit had the effect of prohibiting the provision of personal wireless services in violation of the Telecommunications Act of 1996.  The Court of Appeals reversed the District Court decision.

Facts

360^o Communications applied for a special use permit to build a 100-foot lattice tower on the ridgeline of Dudley Mountain that would extend 40 to 50 feet above the tree canopy. 

At the Planning Commission meeting, 13 citizens spoke in opposition to the tower and the County planning staff recommended the denial of the application because the proposal …

·      Is inconsistent with the Albemarle County Comprehensive Plan.

·      Violates two provisions of the Albemarle County Zoning Ordinance.

The County planning staff also noted that the denial of the application would not have the effect of prohibiting service because 360^o Communications had not demonstrated the lack of other feasible locations for the tower.

At the Board of Supervisors hearing, 360^o Communications presented the following evidence:

·      It has received about 20 calls per day complaining about inadequate service in the Dudley Mountain area.

·      The Dudley Mountain site was the optimal location from which to provide service. 

·      The tower needed to be 40 feet above the tree canopy in order to provide effective coverage.

Representatives of 360^o Communications discussed the following alternatives:

·      Six 100-foot towers at sites below the mountain ridgeline.

·      20 to 24 60-foot poles along the sides of roads near Dudley Mountain.

Citizens opposed to the tower stated concerns with the visibility of the tower, inconsistency with the County's environmental preservation goals, impact on the character of the area, and  potential erosion.  A petition signed by 40 citizens opposed to the tower was given to the Board and a slide show showing pictures of the mountain was presented.  Citizens stated that they already had adequate cellular coverage in the area.

The Board of Supervisors unanimously denied the application based on:

·      Conflict with the County Comprehensive Plan and Open Space Plan.

·      Conflict with the guidelines recommended for mountain resource areas.

·      Conflict with the County Zoning Ordinance.

The Board further concluded that:

·      Alternatives were available to provide service.

·      Its decision would not prohibit service in the County.

·      Since 1990, the County had granted 18 permits for wireless communications towers and denied 4.

360^o Communications filed an action in Federal District Court alleging that Albemarle County violated the following provisions of the Telecommunications Act, because the County's …

·      Decision was not supported by substantial evidence.

·      Decision had the effect of prohibiting the provision of personal wireless services.

The District Court met twice on this issue; the first time under the authority of U.S. Magistrate Judge B. Waugh Crigler, who could only recommend a decision to the District Court Judge.  Judge Crigler found, among other things, that Albemarle County's denial was not supported by substantial evidence.  For those in the audience (and PlanWireless was there), this was particularly surprising in view of the 4^th Circuit's decision in Virginia Beach (see the October and November 1998 issues of PlanWireless).

When Judge James H. Michael returned from vacation, he found that Albemarle County had "submitted objections to virtually every sentence" of Crigler's report.  Upon reconsideration, Judge Michael concluded that the denial was supported by substantial evidence but that the denial nevertheless had the effect of prohibiting service in violation of the Telecommunications Act. 

The District Court concluded that the County applied its zoning ordinance and Comprehensive Plan in a manner that prevented any application from obtaining a permit to provide service in areas geographically similar to Dudley Mountain.  The District Court also found that 360^o Communications' evidence demonstrated that while alternatives of six towers at a lower elevation on the mountain or 20 to 24 road-side poles might be available, they were not reasonable alternatives to mountaintop towers in mountainous areas. 

The Court issued an injunction ordering the Board of Supervisors to issue the special use permit because of the "Board's hostility toward the construction of wireless towers on mountains."

Albemarle County appealed the decision.

The Issue of Substantial Evidence

The Court of Appeals stated that the record showed that the tower would rise above the ridgeline, that citizens of the County spoke unanimously in opposition to the tower, and that the Board had evidence that the tower would be inconsistent with the County plans and policies.  360^o Communications also presented evidence.  The Court, concluding that these issues with conflicting evidence are the type that zoning boards are qualified to resolve, determined that the denial was supported by substantial evidence.

The Issue of Prohibition of Service

Albemarle County challenged the District Court decision based on the court's interpretation of the evidence and on the legal standard it applied.  The County pointed out that reasonable alternatives did exist and that the Board has a record of granting permits for communications towers.

360^o Communications argued that the County denial amounted to a general ban or moratorium and that because of the County's topography, the placement of some towers on some mountaintops is necessary to provide effective coverage.

The Telecommunications Act prohibits local regulation of the placement of personal wireless service facilities that would prohibit or have the effect of prohibiting the provision of personal wireless services.  Local government decisions may not deny wireless telecommunications service.  The Court of Appeals noted that:

This does not mean that the denial of a permit for a particular site amounts to the denial of wireless services because services can be effected from numerous sites in various combinations, sometimes not even within the area to be served.  It follows, therefore, that case-by-case denials of permits for particular sites cannot, without more, be constructed as a denial of wireless services.

The Court stated that it is local policies or general bans against any siting of wireless services that would violate this provision of the Telecommunications Act.  Also, indications by a local government that repeated individual applications will be denied because of a general hostility to wireless services could also violate this section of the Telecommunications Act. 

But whether a single denial of a site permit could ever amount in effect to the prohibition of wireless service is a more difficult question, and it is the question which we are here presented.  Because the simple fact of a denial with respect to a particular site is not enough, there must be something more, taken from the circumstances of the particular application or from the procedure for processing the application, that produces the "effect" of prohibiting service.

Thus, conceptually, if wireless service could feasibly be provided from only one site, a denial of a permit for a facility at that site could amount to a prohibition of wireless service … But such a hypothetical seems unlikely in the real world, although gradations of the hypothetical are conceivable.

Conclusion

The Court of Appeals concluded that the Board of Supervisors decision was supported by substantial evidence in the record and that there is insufficient evidence in the record to conclude that the denial of this single permit has the effect of prohibiting the provision of personal wireless serves.

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