New Cingular Wireless PCS, LLC v. Fairfax County Board of Supervisors

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEW CINGULAR WIRELESS PCS, 

LLC, d/b/a AT&T Mobility,

Plaintiff-Appellant,

v.  No. 10-2381

THE FAIRFAX COUNTY BOARD OF

SUPERVISORS,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(1:10-cv-00283-LMB-TRJ)

Argued: January 26, 2012

Decided: March 19, 2012

Before AGEE, DAVIS, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opin-

ion, in which Judge Davis and Judge Floyd joined. Judge

Davis wrote a separate concurring opinion.

2 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY

COUNSEL

ARGUED: Hans J. Germann, MAYER BROWN, LLP, Chi-

cago, Illinois, for Appellant. Laura Schempf Gori, COUNTY

ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellee. ON

BRIEF: David H. Cox, James N. Markels, JACKSON &

CAMPBELL, PC, Washington, D.C.; John E. Muench, Nissa

J. Imbrock, MAYER BROWN, LLP, Chicago, Illinois, for

Appellant. David P. Bobzien, County Attorney, Elizabeth

Doyle Teare, Senior Assistant County Attorney, COUNTY

ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellee.

OPINION

AGEE, Circuit Judge:

The Telecommunications Act of 1996 ("the Act") requires

that a local government’s denial of a request to place "per-

sonal wireless service facilities" be supported by substantial

evidence, and not "have the effect of prohibiting the provision

of personal wireless services." 47 U.S.C.

§§ 332(c)(7)(B)(i)(II) & 332(c)(7)(B)(iii). In this case, the

Board of Supervisors of Fairfax County, Virginia ("the

Board") rejected the application of New Cingular Wireless

("AT&T") to build an 88-foot telecommunications tower in a

residential neighborhood, a decision which AT&T later chal-

lenged in the United States District Court for the Eastern Dis-

trict of Virginia. The district court determined that substantial

evidence undergirded the Board’s decision, and that the

Board’s ruling did not effectively prohibit wireless services

under the Act. For the reasons discussed below, we affirm the

judgment of the district court.

I.

Under the applicable Fairfax County, Virginia ("the

NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 3

County") zoning ordinance, telecommunications facilities

may be located in residential zoning districts only by special

exception. See Zoning Ordinance §§ 3-304(1), 9-001;1 Va.

Code § 15.2-2286(A)(3). Where, as here, a party seeks to

build a telecommunications facility in a residential neighbor-

hood,2 it must submit a special exception application to the

Board. It is the Board’s denial of such an application that is

at issue here.3

In addition to a special exception application, a party seek-

ing to build a telecommunications tower that is not shown on

the County’s Comprehensive Plan must submit a zoning

application to the County Planning Commission. See Va.

Code § 15.2-2232. After determining whether the application

substantially conforms to the County’s Comprehensive Plan,

the Planning Commission makes a recommendation to the

Board, which can overrule the Planning Commission’s deci-

sion. Id. While the Planning Commission made a recommen-

dation that the Board approve AT&T’s zoning application in

this case, the Board did not rule on that matter, and it is not

at issue here. To provide a complete picture of the facts

underlying this dispute, however, we note below the findings

of both the Planning Commission and the Board.

AT&T, contending that it could only provide limited in-

building and in-vehicle wireless services in the County’s Fort

Hunt area, submitted a special exception application to the

1

Citations to the "Zoning Ordinance" refer to the Fairfax County, Vir-

ginia Zoning Ordinance.

2

The relevant County zoning designation for the neighborhood in which

AT&T’s proposed telecommunications facility was to be located, R-3, is

a residential neighborhood "established to provide for single family

detached dwellings . . . ; to provide for affordable dwelling unit develop-

ments; to allow other selected uses which are compatible with the low

density residential character of the district; and otherwise to implement the

stated purpose and intent of this Ordinance." Zoning Ordinance § 3-301.

3

See J.A. 509-14 (Board voting to deny Special Exception Application

2008-MV-031).

4 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY

Board and a zoning application to the Planning Commission

to determine whether its proposal substantially conformed to

the County’s Comprehensive Plan. The proposed facility,

consisting of a 15-foot tall storage shed and an 88-foot tower

disguised as a tree ("the tree monopole"), was to be erected

behind a Masonic lodge in an otherwise residential neighbor-

hood, approximately one hundred feet from nearby resi-

dences.

At a hearing on the matter, "[s]everal individuals who live

near the proposed site testified . . . in opposition to the con-

struction of the wireless tower." New Cingular Wireless PCS,

LLC d/b/a AT&T Mobility v. Fairfax Cnty. Bd. of Sup’rs, No.

10-cv-283, 2010 WL 4702370, at *1, (E.D. Va. November 10,

2010) ("New Cingular"). Despite these objections, the Plan-

ning Commission found that the proposed facility substan-

tially conformed to the Comprehensive Plan, and made a

recommendation to the Board for approval of AT&T’s appli-

cation.

Pursuant to Zoning Ordinance 9-006(3), the Board may

approve a special exception application only when the pro-

posed facility is "harmonious with" and would not "adversely

affect the use . . . of neighboring properties . . . ." Further-

more, the County’s Policy Plan, which comprises a portion of

the Comprehensive Plan, states that new telecommunications

facilities should be located "on properties that provide the

greatest opportunity to conceal the telecommunications facili-

ties," and designed to "provide[ ] the least visual impact on

residential areas. . . ." Pol. Plan Obj. 42(b) & (i), set forth in

Br. of Appellant at A10-A11.

The Board held a public hearing, and, based on its consid-

eration of community opposition and the aforementioned zon-

ing regulations, among other things, denied AT&T’s special

exception application. In its eleven-page ruling,4 the Board

4

The Board issued a written opinion outlining its findings after AT&T

filed its complaint in this action. The issue whether the Board complied

with the Act’s requirement that a decision be in writing is not at issue in

this appeal.

NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 5

described the facts upon which it based its determinations that

AT&T’s proposal did not conform to the County’s Compre-

hensive Plan or the standards for approval of a special use

exception under the zoning ordinance:

The Proposed Facility is proposed to be located . . .

at a distance of only approximately 100 feet from

two of the neighboring residences. . . . [E]xisting

vegetation on the Proposed Site is minimal. . . . On

the northern and western sides of the building, there

are concrete pads. On the eastern end of the Pro-

posed Site there are a few trees and a small, grassy

area with dense brush. Otherwise, the remainder of

the Proposed Site is paved with asphalt. . . . The Pro-

posed Facility would . . . extend 38 feet above the

closest tree. There are some existing trees located on

adjacent property . . . but those trees average only

approximately 40 feet in height. . . . The tree

monopole clearly towers above the neighboring

trees. . . . Further, the proposed supplemental vegeta-

tion would not reach a sufficient height to minimize

the visual impact of the Proposed Facility. . . . Forty-

seven members of the community signed a Petition

opposing the Proposed Site and approximately

twenty-one community members attended a meeting

to discuss their opposition to the Proposed Site.

Based on the addresses provided on the Petition and

meeting sign-in sheet, these community members

live within approximately a one-mile radius of the

Proposed Site. . . . The Board took this community

opposition into consideration as one of the many fac-

tors it considered . . . .

JA 160-66 (citations omitted).

Following the Board’s denial of the special exception appli-

cation, AT&T filed a complaint pursuant to 47 U.S.C.

§ 332(c)(7)(B)(v), alleging that the Board’s decision violated

6 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY

the Act’s substantial evidence requirement,

§ 332(c)(7)(B)(iii), and that the decision amounted to an

effective prohibition of wireless services in violation of

§ 332(c)(7)(B)(i)(II). Ruling on the parties’ cross-motions for

summary judgment, the district court held first that:

the Fairfax Board reached a reasonable decision

[under subsection (B)(iii)] to deny [AT&T’s] appli-

cation on the basis of a determination that the pro-

posed telecommunications facility was not in

harmony with the local Zoning Ordinance and the

County’s Comprehensive Plan, that community resi-

dents were understandably opposed to the construc-

tion of a telecommunications tower in the middle of

a residential area, and that the proposed . . . treepole

facility would be highly visible at the proposed site

and would depress local property values.

New Cingular, 2010 WL 4702370, at *3. Secondly, the dis-

trict court determined that, "particularly in light of evidence

of the Board’s previous approval of numerous zoning applica-

tions for telecommunications facilities, including at least three

of [AT&T’s] own telecommunications facilities in the vicinity

of the proposed site[,]" there was no violation of subsection

(B)(i)(II). Id.

AT&T filed a timely notice of appeal and we have jurisdic-

tion under 28 U.S.C. § 1291.

II.

The Court reviews de novo an award of summary judg-

ment, S.C. Green Party v. S.C. State Election Comm’n, 612

F.3d 752, 755 (4th Cir. 2010), which is appropriately granted

"if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a).

NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 7

A.

Subsection (B)(iii) of the Act, commonly termed the "sub-

stantial evidence requirement," mandates that "[a]ny 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 . . . supported by substantial evi-

dence. . . ." 47 U.S.C. § 332(c)(7)(B)(iii). We first consider

AT&T’s contention that the Board’s decision failed to comply

with the substantial evidence requirement.

In reviewing a decision of a zoning board, we are "not free

to substitute [our] judgment" for that of the board. AT & T

Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjust-

ment, 172 F.3d 307, 314 (4th Cir. 1999)("Winston-Salem").

To the contrary, we "must uphold a decision that has ‘substan-

tial support in the record as a whole’ even if [we] might have

decided differently as an original matter." AT & T Wireless

PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 430

(4th Cir. 1998)("Virginia Beach")(citation omitted). The task

before us, then, is to determine whether the record "contains

such relevant evidence that a reasonable mind might accept as

adequate to support the Zoning Board’s conclusion." Winston-

Salem, 172 F.3d at 315 (internal quotation marks omitted).

Such evidence must be "more than a mere scintilla," but can

be "less than a preponderance." Petersburg Cellular P’ship v.

Bd. of Sup’rs of Nottoway Cnty., 205 F.3d 688, 694 (4th Cir.

2000)("Nottoway County").

In determining that the Board’s decision satisfied subsec-

tion (B)(iii), the district court correctly noted that "a proposed

telecommunications facility’s inconsistency with local zoning

requirements can be sufficient to establish substantial evi-

dence supporting the denial of a zoning application." New

Cingular, 2010 WL 4702370, at *4. Not only have we

observed that "evidence regarding" a proposed telecommuni-

cation facility’s negative "impact on the neighborhood" may

support a finding of substantial evidence, Winston-Salem, 172

8 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY

F.3d at 317, but we have recognized that, even in the face of

conflicting evidence presented by the wireless provider, suffi-

cient evidence may support a board’s decision where there is

evidence that the proposed facility "would be inconsistent

with" a county’s "Comprehensive Plan" or "Zoning Ordi-

nance." 360° Commc’ns Co. of Charlottesville v. Bd. of

Sup’rs of Albemarle Cnty., 211 F.3d 79, 84-85 (4th Cir.

2000). See also USCOC of Va. RSA #3 v. Montgomery Cnty.

Bd. of Sup’rs, 343 F.3d 262, 272 (4th Cir.

2003)("Montgomery County")(finding that the denial of an

application to build a telecommunications tower found "ample

support" in the form of "evidence regarding the proposed

tower’s inconsistencies" with "zoning ordinances and guide-

lines").

Here, as the district court recognized, "the Board identified

a number of ways in which [AT&T’s] proposed wireless

facility would not be in harmony with the zoning objectives

and the Comprehensive Plan for that geographical area." New

Cingular, 2010 WL 4702370, at *5. Indeed, far from "provid-

[ing] the least visual impact on residential areas," as required

by the County’s Policy Plan Objective 42(i), the Board noted

that the proposed facility: (1) was to be located 100 feet from

two of the neighboring residences; (2) would extend thirty-

eight feet above the closest tree; (3) would rise approximately

forty-eight feet above the average height of the existing trees

on the adjacent property; (4) was to be located on a site con-

taining concrete pads, with only a few trees and a small,

grassy area with dense brush; and (5) called for supplemental

vegetation that, when full grown, would not reach a sufficient

height to minimize the tree monopole’s visual impact. Like

the district court, we find that these discrete characteristics of

the proposal, when considered together, are adequate to sup-

port the Board’s conclusions that the proposed facility does

not satisfy the County’s Policy Plan or the standards for

approval under the zoning ordinance.

NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 9

Moreover, even if it were assumed the above evidence were

insufficient by itself to satisfy subsection (B)(iii), there is an

additional basis on which we may conclude that the Board’s

decision was supported by substantial evidence in the record.

As our precedent reflects, when considering whether the

record "contains such relevant evidence that a reasonable

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

conclusion," Winston-Salem, 172 F.3d at 315 (internal quota-

tion marks omitted), we have explained that "a reasonable

mind" should be understood as "the mind of a reasonable leg-

islator." Nottoway County, 205 F.3d at 694. Under this

reasonable-legislator standard, "[i]t is not only proper but

even expected that a legislature and its members will consider

the views of their constituents to be particularly compelling

forms of evidence." Virginia Beach, 155 F.3d at 430. Hence,

"[i]f a legislative body denies a permit based on the

reasonably-founded concerns of the community, then

undoubtedly there is substantial evidence to support the

body’s decision."5 Nottoway County, 205 F.3d at 695 (internal

quotation marks and emphasis omitted).

The record indicates that the Board considered community

opposition that "[f]acilities of this type do not belong in a resi-

dential community such as ours," JA 528, and would "disrupt

the neighborhood and the country-like setting." JA 788 (inter-

nal quotation marks and alterations omitted). Given the design

of the proposed facility and its placement in the midst of a

residential neighborhood, we agree with the district court that

those community concerns were not irrational. Additionally,

board members observed at the hearing that "there [are] a lot

of houses in close proximity" to the proposed site, and that the

site "is in the middle of a residential neighborhood with very

close neighbors . . . that would see [the monopole] all the

5

Of course, while "reasonably-founded concerns of the community"

would constitute substantial evidence, the "objectively unreasonable"

opposition of an "irrational" few cannot. Nottoway County, 205 F.3d at

695.

10 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY

time." JA 511-12. On the basis of these reasonably founded

community concerns, we have little difficulty concluding that

the Board’s decision was supported by substantial evidence.

For these reasons, we find the Board’s denial of AT&T’s

application had substantial support in the record as a whole

and complied with the substantial evidence requirement of

subsection (B)(iii) of the Act.

B.

We next consider whether the Board’s decision complied

with subsection (B)(i)(II) of the Act, which forbids decisions

on tower placement that have the effect of prohibiting a car-

rier from providing personal wireless services to the area. We

recently decided a similar question in T-Mobile Northeast,

LLC v. Fairfax County Board of Supervisors, No. 11-1060

(4th Cir. Mar. 1, 2012), in which we recognized that

the language of this subsection does not encompass

the ordinary situation in which a local governing

body’s decision merely limits the level of wireless

services available because, as we have explained, the

Act cannot guarantee 100 percent coverage.

Slip op. at 13. Moreover, we stated that

we emphasize that a plaintiff’s burden to prove a

violation of subsection (B)(i)(II) is substantial and is

particularly heavy when, as in this case, the plaintiff

already provides some level of wireless service to

the area.

Id. Lastly, we made clear in T-Mobile that

a plaintiff must meet one of two standards to prevail

under subsection (B)(i)(II). The plaintiff must estab-

lish: 1) that a local governing body has a general pol-

NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 11

icy that effectively guarantees the rejection of all

wireless facility applications, Albemarle County, 211

F.3d at 87; Virginia Beach, 155 F.3d at 429; or 2)

that the denial of an application for one particular

site is "tantamount" to a general prohibition of ser-

vice, Albemarle County, 211 F.3d at 87-88.

In asserting a claim under this second theory, as

T-Mobile does here, a plaintiff must show a legally

cognizable deficit in coverage amounting to an

effective absence of coverage, and that it lacks rea-

sonable alternative sites to provide coverage. See id.

at 87-88. We also have stated that the plaintiff

should be able to demonstrate that further reasonable

efforts to gain approval for alternative facilities

would be "fruitless." See [Montgomery County], 343

F.3d [at] 269; Albemarle County, 211 F.3d at 88.

Id. at 13-14. As explained presently, even if we were to

assume under T-Mobile’s "second theory" that AT&T pro-

vided evidence establishing a prima facie case of an effective

absence of coverage, it simply failed to provide evidence to

establish "a lack of reasonable alternative sites."

In seeking to present evidence of a lack of reasonable alter-

natives, AT&T contends that it "presented evidence that it had

examined numerous other locations, but they were unusable

or unavailable."6 Br. for Appellant at 45. One of these loca-

tions, Fort Hunt National Park, was in AT&T’s view "un-

available" because previous attempts by Verizon, a competing

carrier, to locate two wireless facilities in nearby national

parks indicated that park officials "were ‘loathe’ [sic] to

6

AT&T also argues that our analysis should be guided by the FCC’s

most recent order, In re Petition for Declaratory Ruling to Clarify Provi-

sions of Section 332(c)(7)(B), 24 FCC Rcd. 13994 (F.C.C. 2009). Br. for

Appellant at 40-42. We considered and rejected that argument in T-

Mobile. Slip op. at 9-12.

12 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY

locate wireless facilities on park property, and applications

can take years to process with no certainty of outcome." Id.;

see also Reply Br. for Appellant at 26 ("[P]ark officials are

loathe [sic] to allow such facilities and applications can take

years to process with no certainty of outcome.").

The plaintiff in T-Mobile advanced a very similar argu-

ment, contending that alternative sites were unavailable as a

practical matter because a national "park’s policy prohibit[ed]

the placement of poles in the park until other alternatives are

eliminated." Slip op. at 15. The Court swiftly discarded this

assertion, finding "the difficulties presented in meeting such

restrictions are insufficient to establish that a provider lacks

reasonable alternatives for the provision of its services." Id. at

15.

Here, AT&T provides even less evidence than did T-

Mobile. As discussed above, the entirety of AT&T’s argu-

ment on this point is its bare assertion, based on nothing but

the speculation of a consultant, that Fort Hunt National Park

"was not a feasible option because park officials were ‘loathe’

[sic] to locate wireless facilities on park property, and applica-

tions can take years to process with no certainty of outcome."

Br. for Appellant at 45; Reply Br. for Appellant at 26. As we

concluded in T-Mobile, since a national park’s general policy

of denying applications because other sites have not been

eliminated as possibilities constitutes insufficient evidence to

prove a § 332(c)(7)(B)(i)(II) claim, all the more so are the

wholly speculative assertions provided here. For even if park

officials might have been "loath" to approve a proposal, a

plaintiff’s mere reference to a competitor’s prior experience

seeking to locate undescribed and unknown facilities in differ-

ent parks, without more, is insufficient evidence on which to

establish a lack of reasonable alternative sites.

We thus agree with the district court’s conclusion that

because AT&T "has yet to even submit . . . an application to

Fort Hunt National Park authorities," AT&T’s argument "that

NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 13

there are ‘no other feasible alternatives’ to the Masonic Lodge

site is unpersuasive." New Cingular, 2010 WL 4702370, at

*9.

Moreover, where a plaintiff asserts a claim that a denial of

an application is tantamount to a general prohibition of ser-

vice, we have also required that plaintiff "to demonstrate that

further reasonable efforts to gain approval for alternative

facilities would be fruitless." T-Mobile, slip op. at 14 (internal

quotation and citation omitted). A plaintiff can satisfy this

burden only where further efforts would be "so likely to be

fruitless that it is a waste of time to try." Montgomery County,

343 F.3d at 268; Albemarle County, 211 F.3d at 88 (quoting

Town of Amherst, N.H. v. Omnipoint Commc’ns Enters., Inc.,

173 F.3d 9, 14 (1st Cir. 1999)). Although AT&T argues that

applications to place a telecommunications facility on a

national park "can take years to process with no certainty of

outcome," such an allegation is purely speculative and with-

out any factual basis in the record. Thus, AT&T has not estab-

lished that it would be "likely" that an application would fail.

Based on the failure of proof by AT&T, the district court

correctly granted summary judgment to the Board on AT&T’s

claim that the Board’s denial of its application violated sub-

section B(i)(II) of the Act.

III.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

DAVIS, Circuit Judge, concurring:

I concur fully in Judge Agee’s fine opinion for the panel.

As Judge Agee ably explains, substantial evidence supports

the Board’s decision, and AT&T has failed to provide more

14 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY

than a scintilla of evidence from which a reasonable fact-

finder could conclude that further efforts to secure approval

for a wireless facility in Fort Hunt National Park are "so likely

to be fruitless that it is a waste of time to try." Maj. Op. at 13

(quoting USCOC of Virginia RSA#3, Inc. v. Montgomery

County Board of Supervisors, 343 F.3d 262, 268 (4th Cir.

2003)). That is, I agree that AT&T’s evidence on the "lack of

reasonable alternative sites" is significantly weaker than was

T-Mobile’s evidence on alternative sites in T-Mobile North-

east, LLC v. Fairfax County Board of Supervisors, No. 11-

1060, slip op. at 10, (4th Cir. Mar. 1, 2012), which the major-

ity in that case held (over my dissent) to be insufficient to

require a trial on the issue. Id. at 16. I write separately simply

to note that neither in this case nor in T-Mobile has this circuit

yet determined "whether a particular level of coverage in a

particular geographic area constitutes an ‘effective absence of

coverage.’" Id. at 29 (Davis, J., dissenting). That question

remains for resolution in a future case.