Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:25-cv-168-MR-WCM

THE TOWERS, LLC, )

)

Plaintiff, ) MEMORANDUM AND

v. ) RECOMMENDATION

)

POLK COUNTY, NORTH CAROLINA, )

)

Defendant. )

___________________________________ )

This matter is before the Court on Defendant’s Partial Motion to Dismiss

(Doc. 6), which has been referred to the undersigned for the entry of a

recommendation pursuant to 28 U.S.C. § 636.

I. Relevant Procedural History

On June 9, 2025, The Towers, LLC (“Plaintiff”) filed its Complaint

against Polk County, North Carolina (“Defendant”). Doc. 1.

On August 8, 2025, Defendant filed the Partial Motion to Dismiss along

with a supporting memorandum and an Answer. Docs. 6, 7, 10. Plaintiff has

responded to the Partial Motion to Dismiss and Defendant has replied. Docs.

11, 13.

II. Plaintiff’s Allegations and Claims

Plaintiff constructs towers and other wireless network facilities. Doc. 1

at ¶ 23. To improve the coverage and capacity of its wireless

telecommunications network in and around Polk Country, North Carolina,

Verizon Wireless “engaged Plaintiff to develop a new wireless

telecommunications facility” and, to that end, Plaintiff sought permits to build

a wireless tower (the “Proposed Tower”) on a site located near Columbus, North

Carolina. Id. at ¶¶ 23-33.

Plaintiff alleges that in order to construct a wireless telecommunications

facility in Polk County, an applicant must obtain (1) a Tower Permit, and (2) a

Special Use Permit. Id. at ¶ 36.

On March 4, 2025, the Polk County Board of Adjustment (the “Board”)

granted an application by Plaintiff for a Tower Permit. Id. at ¶¶ 41-42.

On April 8, 2025, the Board held a hearing on an application by Plaintiff

for a Special Use Permit. Id. at ¶ 43. The Board heard testimony from a real

estate appraiser and Plaintiff provided the Board with maps, photographic

simulations of the Proposed Tower, a narrative explanation of the need for the

Proposed Tower, and an impact study. Id. at ¶¶ 47-48, 51-54. Additionally, the

Board heard testimony from residents of Polk County who opposed the

application for a Special Use Permit. Id. at ¶¶ 49-50.

On April 15, 2025, the Board met again to consider Plaintiff’s Special

Use Permit application; the Board ultimately “did not approve” Plaintiff’s

application, which was “deemed denied.” Id. at ¶¶ 55, 61-62.

Plaintiff asserts that the Board’s denial of its Special Use Permit

application violated the Federal Telecommunications Act of 1996 (the “TCA”)

because the Board’s decision was not in writing and was not supported by

substantial evidence (Count One), and further because the denial has the effect

of unlawfully prohibiting the provision of personal wireless services (Count

Two). Id. at ¶¶ 65-83 (citing 47 U.S.C. §§ 332(c)(7)(B)(iii); 332(c)(7)(B)(i)(II)).

Additionally, Plaintiff seeks judicial review, pursuant to N.C. Gen. Stat.

§ 160D-1402, of the Board’s decision, contending that it was not supported by

competent, material, and substantial evidence (Count Three), was in violation

of the TCA and the North Carolina Wireless Telecommunications Act (Count

Four), and was arbitrary and capricious (Count Five). Id. at ¶¶ 84-96.

III. Legal Standard

By the Partial Motion to Dismiss Motion, Defendant argues that this

Court should abstain, under Burford v. Sun Oil Co., 319 U.S. 315 (1943), from

considering Plaintiff’s state law claims (Counts Three, Four, and Five).

“The Fourth Circuit has not decided whether a court entertaining an

abstention argument should apply a Rule 12(b)(1) or 12(b)(6) standard,” and

“[d]istrict courts have allowed abstention challenges to be raised under both a

Rule 12(b)(1) and Rule 12(b)(6) motion.” Johnson v. PennyMac Loan Servs.,

LLC, No. 4:21-cv-815-TLW-TER, 2022 WL 410078, at *3 (D.S.C. Jan. 19, 2022)

(citing Williams v. Estates, LLC, No. 1:19-cv-1076, 2020 WL 887997, at *8 n.6

(M.D.N.C. Feb. 24, 2020) (collecting cases)). However, one court has found

“Rule 12(b)(6) seems to be the most appropriate vehicle for abstention

arguments given that such doctrines presuppose that federal court jurisdiction

exists (rather than a lack of subject matter jurisdiction as challenged by Rule

12(b)(1)) ….” Id.

IV. Discussion

A. Abstention

“In Burford, the Supreme Court held that a federal district court sitting

in equity may, in its discretion, decline to exercise its jurisdiction in certain

circumstances if abstention is necessary to show proper regard for a state

government’s domestic policy.” Pomponio v. Fauquier Cnty. Bd. of Supervisors,

21 F.3d 1319, 1324 (4th Cir. 1994) (citing Burford, 319 U.S. at 317-18),

partially overruled on other grounds by, Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 728–31 (1996). While there is no “formulaic test for Burford

abstention,” the “Supreme Court has admonished the federal courts to respect

the efforts of state governments to ensure uniform treatment of essentially

local problems.” MLC Automotive, LLC v. Town of Southern Pines, 532 F.3d

269, 280 (4th Cir. 2008) (citing Quackenbush, 517 U.S. at 726-27; Johnson v.

Collins Ent. Co., 199 F.3d 710, 719 (4th Cir. 1999)) (internal quotation marks

omitted).

The Fourth Circuit has held that Burford abstention is appropriate in

cases involving “a complex state regulatory scheme concerning important

matters of state policy.” Aluminum Co. of America v. Utilities Comm’n of State

of N.C., 713 F.2d 1024, 1029 (4th Cir. 1983) (affirming the district court’s

abstention decision in a case involving the setting of electricity rates). Further,

the Fourth Circuit has “reiterated that state and local zoning and land use law

is particularly the province of the State,” has stated that “federal courts should

be wary of intervening in that area in the ordinary case,” Pomponio, 21 F.3d at

1327 (citing Browning–Ferris, Inc. v. Baltimore Cnty., Md., 774 F.2d 77, 79-80

(4th Cir. 1985)), and has explained that

In cases in which plaintiffs’ federal claims stem solely

from construction of state or local land use or zoning

law, not involving the constitutional validity of the

same and absent exceptional circumstances…the

district courts should abstain under the Burford

doctrine to avoid interference with the State's or

locality's land use policy.

Id. at 1328.

However, the Pomponio court also recognized that in certain

circumstances that “reflect[] the presence of a genuine and independent federal

claim,” Burford abstention is inappropriate. Id.

In this case, Plaintiff has asserted claims under both the TCA and state

law stemming from the denial of its Special Use Permit application. Defendant

argues that this Court should abstain from exercising jurisdiction over

Plaintiff’s state law claims because “local land use decisions are quintessential

state interests.” Doc. 7 at 1; see also Doc. 7 at 7-16 (arguing that Plaintiff’s

state law claims fall under a complex regulatory scheme that North Carolina

has implemented to manage land use issues, that Plaintiff’s state law claims

raise important issues of state or local policy, and that state law provides a

specific avenue for judicial review of a planning board’s decisions).

The Middle District of North Carolina in AT&T Wireless PCS, Inc. v.

Winston-Salem Zoning Board of Adjustment, 11 F. Supp.2d 760 (M.D.N.C.

1998), affirmed in part and reversed in part, 172 F.3d 307 (4th Cir. 1999),

though, rejected a similar argument. There, the plaintiff alleged violations of

the TCA based on the defendant’s denial of an application for a special use

permit to erect an antenna tower. Id. at 762. The defendant argued, among

other things, that abstention was appropriate because the case dealt with

issues of land use planning, that the defendant’s denial of the special use

permit application was based upon an “extensive state and local regulatory

scheme designed for appeal to state courts,” that the state courts had

experience dealing with appeals of land use planning decisions, and that the

state statutes “mandate[d] that the appeal of zoning authority be made to a

particular state court.” Id. at 763.

As an initial matter, the Middle District found “persuasive the Board’s

arguments for why a federal court should abstain from involving itself in a

locality’s land use decisions” and explained that “[a]bsent special

circumstances,” it “would not entertain general appeals from a zoning board’s

judgment.” Id. The court went on to find, though, that the plaintiff had alleged

“special circumstances” that counselled against abstention. Id. Specifically, the

court explained that while the TCA preserved the “decision-making role of local

zoning authorities,” the act “expressly places limitations, both substantive and

procedural, on the power to make zoning decisions regarding wireless towers”

including that any denial of a request to construct a tower must be “in writing

supported by substantial evidence….” Id. (citing 47 U.S.C. § 332(c)(7)(B)(iii)).

On appeal, the Fourth Circuit noted that:

The Zoning Board . . . takes issue with the district

court's declining to abstain in this case. That position

is not well taken. 47 U.S.C. § 332(c)(7)(B)(v) provides

that any person adversely affected by any final action

of an instrumentality of state or local government that

is inconsistent with “this subparagraph” of the statute

may commence an action in any court of competent

jurisdiction, which court may hear and decide such

actions. We think that subsection (v) gives jurisdiction

to the district court and, since it refers specifically to

this part of the statute dealing with zoning, precludes

in cases in which a non-frivolous claim has been stated

for a violation of the statute, the dismissal of a claim

for want of jurisdiction or abstaining from deciding a

claim in which jurisdiction of this statute has been

claimed, as here.

AT&T Wireless PCS, 172 F.3d at 312 n.3.

The plaintiff in AT& T Wireless PCS appears to have asserted only

claims under the TCA, and not related state law claims. But AT& T Wireless

PCS remains instructive and counsels against abstention here. In that regard,

Plaintiff has asserted federal claims arising under the TCA, and those claims

may require the Court to analyze the Board’s decision to deny Plaintiff’s

Special Use Permit application in a manner similar to Plaintiff’s state law

claims. Compare 47 U.S.C. § 332(c)(7)(B)(iii) (“Any decision by a State or local

government or instrumentality thereof to deny a request to place, construct, or

modify personal wireless service facilities shall be in writing and supported by

substantial evidence contained in a written record.”) with N.C. Gen. Stat. §

160D-1402(j)(1) (directing the reviewing court to consider whether the local

decision-making body’s decision was, among other things, “unsupported by

competent, material, and substantial evidence in view of the entire record”);

also compare New Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. of

Supervisors, 674 F.3d 270, 274 (4th Cir. 2012) (acknowledging the TCA’s

requirement at § 332(c)(7)(B)(iii) and identifying the federal review standard

as whether the local decision “has substantial support in the record as a whole”

and “whether the record contains such relevant evidence that a reasonable

mind might accept as adequate to support the Zoning Board’s conclusion”)

(internal citations and quotation marks omitted) with JWL Invs., Inc. v.

Guilford Cnty. Bd. of Adjustment, 133 N.C. App. 426, 429 (1999), disc. review

denied, 351 N.C. 357 (1999) (“[I]f the petitioner contends the Board's decision

was not supported by the evidence or was arbitrary and capricious, then the

reviewing court must apply the whole record test. It is not the function of the

reviewing court, upon writ of certiorari under [former N.C. Gen. Stat. § 160D-

1402(j)], to find the facts, but instead, it is to determine if the findings made

by the Board are supported by the evidence.”) (internal citations and quotation

marks omitted).

B. Supplemental Jurisdiction

“[I]n any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy. . . .” 28 U.S.C.

§ 1367(a); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725

(1966) (for a district court to assert pendent or ancillary, now known as

supplemental, jurisdiction over state law claims: (1) “the federal claim must

have sufficient substance to confer subject matter jurisdiction on the court,” (2)

the “state and federal claims must derive from a common nucleus of operative

fact,” and (3) the “claims are such that [the plaintiff] would ordinarily be

expected to try them all in one judicial proceeding”).

Section 1367 also enumerates instances in which a district court may

decline to exercise supplemental jurisdiction, including when a claim “raises a

novel or complex issue of State law,” where a state law claim “substantially

predominates over the claim or claims over which the district court has original

jurisdiction,” and when, “in exceptional circumstances, there are other

compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c).

Here, Defendant argues that if the Court does not abstain it should

decline to exercise supplemental jurisdiction over Plaintiff’s state law claims

because those claims raise complex issues of state law and predominate over

Plaintiff’s TCA claims. See Doc. 7 at 17-24.

As discussed above, however, Plaintiff has asserted independent federal

claims arising under the TCA and it is not apparent at this juncture that

Plaintiff’s state law claims substantially predominate over those federal

claims.

Further, courts in this district have reviewed zoning board decisions

pursuant to North Carolina law. See Catherine H. Barber Memorial Shelter,

Inc. v. Town of North Wilkesboro Bd. of Adjustment, 576 F. Supp.3d 318, 328,

330-35 (W.D.N.C. 2023) (reciting the standard of review from Section 160D-

1402 and stating that if “a plaintiff contends that the local governmental body’s

decision was either (1) arbitrary or capricious or (2) was not supported by

competent, material, or substantial evidence, as is the case here, a court is

required to conduct a whole record review” before concluding the defendant

made “clear legal errors” and continuing “to evaluate the Board’s reasoning

based on any remaining competent evidence,” before finally determining “that

the Board’s denial of the [permit] violated North Carolina law” and remanding

the matter to the Board of Adjustment of the Town of North Wilkesboro with

instructions to grant a conditional use permit) (citing Mann Media, Inc. v.

Randolph Cnty. Planning Bd., 356 N.C. 1, 13 (2002); Citizens Bank & Tr. Co.

v. Reid Motor Co., 216 N.C. 432, 5 S.E.2d 318, 320 (1939)).

Finally, the undersigned is not persuaded that Defendant has

established that there are other compelling reasons for which the Court should

decline to exercise supplemental jurisdiction here where Plaintiff’s federal and

state law claims all arise out of a common nucleus of operative facts. See City

of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 168-69 (1997) (“There is

nothing in the text of § 1367(a) that indicates an exception to supplemental

jurisdiction for claims that require on-the-record review of a state or local

administrative determination. Instead, the statute generally confers

supplemental jurisdiction over ‘all other claims’ in the same case or controversy

as a federal question, without reference to the nature of review.”); White v.

County of Newberry, S.C., 985 F.2d 168, 171-72 (4th Cir. 1993) (concluding

that the district court properly exercised supplemental jurisdiction over the

plaintiff’s state law inverse condemnation claim where the plaintiff was also

asserting a federal claim under CERCLA because both claims shared a

common element); see also T-Mobile Ne. LLC v. City Council of City of Newport

News, Va., No. 4:10-cv-82, 2011 WL 1086496, at *1-2, 9 (E.D. Va. Feb. 4, 2011)

(reviewing a summary judgment motion in a case involving claims under the

TCA and Virginia state law and stating that it “seems without question that

the state and federal claims arose from a common nucleus of operative fact,”

but declining to exercise supplemental jurisdiction over the “state law claim

that the denial of the [permit] was an arbitrary, capricious, unlawful decision”

because the plaintiff did not timely file an appeal of the local agency’s decision

.. .”)3 ef. Hellbender, Inc. v. Town of Boone, No. 5:12CV45-RLV, 2013 WL

1349286, at *2 (W.D.N.C. Mar. 31, 2018) (“If Plaintiffs’ filing is construed solely

as a ‘Petition for Writ of Certiorari,’ [citing former N.C. Gen. Stat. § 160D-1402]

the proper forum for the dispute is the North Carolina Superior Court as

opposed to this federal district court.”) (emphasis in original).

V. Conclusion

For the reasons set forth above, the undersigned RESPECTFULLY

RECOMMENDS that Defendant’s Partial Motion to Dismiss (Doc. 6) be

DENIED.

Signed: February 18, 2026

Co J

«WW. Carleton Metcalf Kg □□

United States Magistrate Judge eA

12

Time for Objections

The parties are hereby advised that, pursuant to Title 28, United States

Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written

objections to the findings of fact, conclusions of law, and recommendation

contained herein must be filed within fourteen (14) days of service of same.

Responses to the objections must be filed within fourteen (14) days of service

of the objections. Failure to file objections to this Memorandum and

Recommendation with the presiding District Judge will preclude the parties

from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140

(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).