T-MOBILE NORTHEAST LLC v. City of Newport News

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

T-MOBILE NORTHEAST LLC, 

Plaintiff-Appellee,

v.

THE CITY COUNCIL OF THE CITY OF  No. 11-1293

NEWPORT NEWS, VIRGINIA; CITY OF

NEWPORT NEWS, VIRGINIA,

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Rebecca Beach Smith, District Judge.

(4:10-cv-00082-RBS-TEM)

Argued: December 6, 2011

Decided: March 26, 2012

Before KING and DIAZ, Circuit Judges, and

Richard M. GERGEL, United States District Judge

for the District of South Carolina,

sitting by designation.

Affirmed by published opinion. Judge Diaz wrote the opinion,

in which Judge King and Judge Gergel joined.

2 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

COUNSEL

Darlene P. Bradberry, OFFICE OF THE CITY ATTORNEY,

Newport News, Virginia, for Appellants. Thomas Scott

Thompson, DAVIS, WRIGHT & TREMAINE, LLP, Wash-

ington, D.C., for Appellee.

OPINION

DIAZ, Circuit Judge:

Following the denial of its application for a conditional use

permit to construct a wireless communication tower at an ele-

mentary school, T-Mobile Northeast LLC filed suit in federal

court, alleging that the denial violated the Telecommunica-

tions Act of 1996. The district court agreed and issued an

injunction directing that T-Mobile’s application be granted.

Because we, too, conclude that the denial is not supported by

substantial evidence as required by the Act, we affirm.

I.

A.

Based on complaints about a gap in coverage in the Den-

bigh area of Newport News, Virginia, T-Mobile identified

R.O. Nelson Elementary School ("Nelson Elementary") as a

target location for a new wireless communication tower. T-

Mobile subsequently entered into an agreement with the New-

port News School Board to lease a parcel of land at the school

for construction and operation of the tower. Under the local

zoning ordinance, however, construction of the tower at the

school required the issuance of a conditional use permit.

Thus, in April 2008, T-Mobile submitted an application for

the permit to the Newport News Planning Department.

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 3

At the time, although already located at local high schools,

no communication towers were located at local elementary

schools. Accordingly, the Planning Department and the

School Board conducted a joint study into the appropriateness

of building towers at elementary schools. While the study was

ongoing, T-Mobile scheduled a meeting to "explain [its appli-

cation] in more detail and to respond to any questions." J.A.

265. Although 150 households near Nelson Elementary were

notified of the meeting, fewer than ten residents attended. The

questions at the meeting focused on the visual impact of the

tower and its potential radiation effects.

In an August 2009 report ("Report"), the Planning Depart-

ment noted that "[e]lementary school sites are desirable to

mobile phone service providers for building cell phone towers

because the sites usually are embedded within residential

neighborhoods." Id. 240. The Report also recommended Nel-

son Elementary as an "acceptable" site for a tower, finding

that (1) the school had more land than needed for recreational

areas, (2) a tower "should not unduly impact the adjacent resi-

dences," (3) the zoning of the surrounding areas did not per-

mit a tower and no towers were in the area, (4) although

single-family residences were nearby, "an extensive wooded

buffer will remain that will reduce [the tower’s] visibility

from adjoining properties," and (5) a tower "will have mini-

mal impact on the surrounding properties and neighborhood

if a stealth design is used." Id. 246.

Subsequently, the City Council (the "City") held a work

session to discuss the Report. Several councilmembers

expressed concerns about the location proposed for the tower.

Id. 258 (voicing concern that "communication towers posed

a health risk to children"); id. 260 (arguing that "communica-

tions towers were dangerous to a child’s developing mind");

id. (noting that "personnel who monitored [the] towers" could

pose a safety risk to students). Ultimately, the City agreed to

consider Nelson Elementary as a potential site, but decided to

study alternative locations as well.

4 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

Thereafter, following discussions between T-Mobile and

the Planning Department, T-Mobile submitted a new, slightly-

modified permit application. Following a public hearing, the

Newport News Planning Commission unanimously recom-

mended that the City approve T-Mobile’s application.

The City held a separate public hearing on T-Mobile’s

application where nine citizens spoke—six in favor of the

application and three in opposition. Those in favor empha-

sized the need for better cell phone coverage and the eco-

nomic benefit the school board would receive by leasing the

land to T-Mobile. The supporters were all affiliated with T-

Mobile, either as customers or employees. T-Mobile also sub-

mitted a petition with the names of fifty-one customers who

supported the tower.

Lisa Murphy, counsel for T-Mobile, explained how

increased cell phone use necessitated constructing towers in

residential areas. She addressed emissions concerns, noting

that the emissions were akin to those from a two-way radio

and stating that the tower was "fully compliant with all of the

federal requirements." Id. 172. Additionally, the record before

the City included photographs from a balloon test, designed

to demonstrate the visual impact of the tower. The City also

had before it a memorandum from the county assessor in

neighboring York County, asserting that he was "not aware of

any instances where the location of a cellular communications

tower has had a negative impact" on property values in York

County and that he received no contrary information from

"several other adjacent localities." Id. 143.

Three local residents spoke in opposition to the tower.

Rachel Weaver, a neighborhood resident and mother of a

kindergartener at Nelson Elementary, expressed concern

about "radiation exposure [ ] to the children," id. 154, and the

property values of nearby homes, id. 156. Michael Charnock,

another local resident, argued that "the decrease in value of

our homes, much less the repercussions of what could happen

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 5

to our children," counseled against constructing the tower. Id.

161.1 Cliff Manuel, the minister of a church neighboring the

school, also opposed the tower, arguing that "the last pristine

possible resource that we have are the children of Newport

News." Id. 164. Additionally, an email from another resident,

Dennis Crawford, was before the City. In it, he raised con-

cerns about the tower’s health effects on children and its

impact on the residential area, and questioned "[h]ow many

more eyesores do we want to locate in Denbigh?" Id. 111.

After closing the hearing, the City voted 4-3 without expla-

nation to deny T-Mobile’s application.

B.

On July 8, 2010, T-Mobile filed suit against the City of

Newport News and the City Council in the Eastern District of

Virginia, alleging violations of section 704 of the Telecom-

munications Act of 1996. T-Mobile’s complaint alleged that

the denial was (1) not supported by substantial evidence, in

violation of 47 U.S.C. § 332(c)(7)(B)(iii) and (2) unlawfully

based on concerns of potential health effects from emissions,

in violation of 47 U.S.C. § 332(c)(7)(B)(iv).2

After considering the parties’ cross-motions for summary

1

Weaver and Charnock voiced similar concerns in a separate email to

the City sent a few days before the hearing.

2

47 U.S.C. § 332(c)(7)(B)(iv) provides that "[n]o State or local govern-

ment . . . may regulate the placement, construction, and modification of

personal wireless service facilities on the basis of the environmental

effects of radio frequency emissions to the extent that such facilities com-

ply with the Commission’s regulations concerning such emissions." We

have noted that the phrase "environmental effects" includes health con-

cerns. See AT & T Wireless PCS, Inc. v. City Council of City of Virginia

Beach, 155 F.3d 423, 431 n.6 (4th Cir. 1998) ("A few citizens did mention

health concerns from radio emissions, a concern the Act precludes, 47

U.S.C. § 332(c)(7)(B)(iv), but these were a small fraction of the overall

opposition . . . .") (emphasis added).

6 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

judgment, the magistrate judge issued his Report and Recom-

mendation, finding that the City’s denial was not based on

substantial evidence. The magistrate judge recommended

granting summary judgment to T-Mobile on this claim, issu-

ing an injunction ordering the City to approve T-Mobile’s

application, and denying the City’s motion for summary judg-

ment. Because the magistrate judge found that "after remov-

ing any discussion of health effects from the record," the

City’s denial is not based on substantial evidence, he deter-

mined that he "need not" decide the second claim.3 Id. 445.

Although both parties filed objections to the magistrate

judge’s Report and Recommendation, the district court

adopted it in full.4 Id. 515. The City timely appealed.

II.

We review a district court’s decision to grant summary

judgment de novo, "applying the same legal standards as the

district court," and "viewing all facts and reasonable infer-

ences therefrom in the light most favorable to the nonmoving

party." Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009)

(citing Nader v. Blair, 549 F.3d 953, 958 (4th Cir. 2008) and

Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 603 (4th Cir.

2002)) (alteration omitted). Under Rule 56(a) of the Federal

Rules of Civil Procedure, summary judgment is appropriate

"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."

3

T-Mobile also alleged that the denial was arbitrary, capricious, and

unlawful under Virginia law. The magistrate judge recommended dis-

missal of this claim, and the district court agreed. That decision is not

challenged on appeal.

4

The parties refer to the Report and Recommendation as the decision of

the district court, and we continue this convention.

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 7

III.

Congress enacted the Telecommunications Act of 1996 "to

secure lower prices and higher quality services for American

telecommunications consumers and encourage the rapid

deployment of new telecommunications technologies." Pub.

L. No. 104–104, 110 Stat. 56 (1996). The Act "sought to limit

the ability of state and local governments to frustrate the [ ]

national purpose of facilitating the growth of wireless tele-

communications, [but] also intended to preserve state and

local control over the siting of towers and other facilities that

provide wireless services." 360° Commc’ns Co. of Charlottes-

ville v. Bd. of Sup’rs of Albemarle County, 211 F.3d 79, 86

(4th Cir. 2000). To strike this balance, the Act preserves the

power of the local zoning authority "over decisions regarding

the placement, construction, and modification of personal

wireless service facilities," while placing certain limits on that

authority. 47 U.S.C. § 332(c)(7)(A).

Two of those limitations are at issue in this case. First, the

Act requires that "[a]ny decision by a State or local govern-

ment 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." Id. § 332(c)(7)(B)(iii).5 Second, the Act

forbids the regulation of wireless service facilities based on

"the environmental effects of radio frequency emissions to the

extent that such facilities comply with the Commission’s reg-

ulations concerning such emissions." Id. § 332(c)(7)(B)(iv).6

5

"We treat separately the two requirements of section (B)(iii)." AT & T

Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d

423, 429 (4th Cir. 1998). That is, the denial must be both in writing and

supported by substantial evidence. T-Mobile does not allege a violation of

the first requirement.

6

The City does not allege that the proposed tower fails to comply with

the relevant regulations.

8 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

The City argues that the district court erred in (1) granting

summary judgment to T-Mobile on its substantial evidence

claim, contending instead that summary judgment should

have been granted in the City’s favor, and (2) failing to grant

summary judgment to the City on T-Mobile’s health effects

claim. We reject these contentions and therefore affirm.

IV.

The Act requires that the City’s denial of T-Mobile’s appli-

cation be "supported by substantial evidence contained in a

written record." 47 U.S.C. § 332(c)(7)(B)(iii) (emphasis

added). "Substantial evidence" is more than a mere scintilla,

but less than a preponderance. See AT & T Wireless PCS, Inc.

v. City Council of City of Virginia Beach, 155 F.3d 423, 430

(4th Cir. 1998). It has been described as "such relevant evi-

dence as a reasonable mind might accept as adequate to sup-

port a conclusion." Id. (quoting Universal Camera v. NLRB,

340 U.S. 474, 488 (1951)). When reviewing the decision of

a local elected body, a "reasonable mind" is the mind of a rea-

sonable legislator. Id. So framed, we have noted that "[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." Id. In reviewing

whether the denial of a permit application is supported by

"substantial evidence," "[a] court is not free to substitute its

judgment for the agency’s (or in this case the legislature’s);

it must uphold a decision that has ‘substantial support in the

record as a whole’ even if it might have decided differently

as an original matter." Id. (quoting NLRB v. Grand Canyon

Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997)).

A.

The City first argues that the district court in effect shifted

the burden from T-Mobile to the City by analyzing whether

there was substantial evidence in the written record to support

the City’s denial of the application without first determining

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 9

whether T-Mobile "presented evidence sufficient to meet the

conditions required by the local zoning ordinance for [the

City] to issue the permit." Appellants’ Br. 2. According to the

City, the tower could be built only with the issuance of a con-

ditional use permit; under the Newport News Zoning Ordi-

nance, in turn, "[a] conditional use permit shall be issued only

if" eight conditions "have been met." J.A. 360 (citing Newport

News Code § 45-2702(1)-(8)).7 The City specifically faults

the district court for failing to assess T-Mobile’s evidence on

the first of these conditions—requiring that "the specific use

[of the tower] . . . be compatible with and not injurious to the

use and enjoyment of other property, nor significantly dimin-

ish or impair property values within the immediate vicinity."8

7

Newport News Code § 45-2702 sets forth the following prerequisites

for issuance of a conditional use permit,

(1) That the specific use will be compatible with and not injuri-

ous to the use and enjoyment of other property, nor significantly

diminish or impair property values within the immediate vicinity;

(2) That the establishment of the specific use will not impede the

normal and orderly development and improvement of surround-

ing vacant property; (3) That adequate utilities, access roads,

drainage and other necessary supporting facilities have been or

will be provided; (4) That the design, location and arrangement

of all driveways and parking spaces provide for the safe and con-

venient movement of vehicular and pedestrian traffic without

adversely affecting the general public or adjacent developments;

(5) That adequate nuisance prevention measures have been or

will be taken to prevent or control offensive odor, fumes, dust,

noise and vibration; (6) That directional lighting is provided so

as not to disturb or adversely affect neighboring properties; (7)

That there [is] sufficient landscaping and screening to insure har-

mony and compatibility with adjacent property; (8) That the pro-

posed use is in accordance with the comprehensive plan.

J.A. 360.

8

On the question of harm to property values, the City criticizes T-

Mobile’s proffered tax assessment from neighboring York County because

it was "from another jurisdiction" and "d[id] not mention the tower or

community at issue." Appellants’ Reply Br. 6-7. This same assessment,

however, was before the City at its hearing, J.A. 173, but no councilmem-

ber challenged the York County report or questioned its relevance in any

way, id. 181-82.

10 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

Id. Absent a review of the evidence offered by T-Mobile, the

City argues, "the District Court did not determine if substan-

tial evidence supported the decision actually made by Coun-

cil." Appellants’ Br. 16. In sum, the City suggests that T-

Mobile’s lack of evidence amounts to substantial evidence

supporting the City’s denial. We disagree.

Although we review de novo the grant of summary judg-

ment in favor of T-Mobile, we do not sit as "an appellate zon-

ing board making a de novo determination of whether the

application satisfied the [relevant] municipal requirements."

Appellee’s Br. 16. The Act instead directs that we determine

whether substantial evidence supports the City’s decision "to

deny a request." 47 U.S.C. § 332(c)(7)(B)(iii) (emphasis

added). Thus, we ask only whether the denial—not the appli-

cation itself—is supported by substantial evidence.

In making this assessment, we look to the applicable zoning

ordinance to determine whether the reasons for the City’s

decision are contemplated therein. See, e.g., Sprint Spectrum,

L.P. v. Platte County, Mo., 578 F.3d 727, 733 (8th Cir. 2009)

(citing the zoning ordinance in noting that "aesthetic concerns

can be a valid basis on which to deny Sprint’s permit")

(emphasis added); T-Mobile Central, LLC v. Unified Gov’t of

Wyandotte County, 546 F.3d 1299, 1307 (10th Cir. 2008)

(concluding that the court "must look to the requirements set

forth in the local zoning code to determine the substantive

criteria to be applied in determining whether substantial evi-

dence existed") (emphasis added). Here, however, the district

court did not find that the City’s denial was based on factors

extrinsic to the ordinance. Rather, effectively assuming the

validity of these factors, the court concluded that the meager

opposition did not amount to substantial evidence. See J.A.

440-41 (finding that although citizens need not be "armed

with a slew of experts," where "the only cohesive thread" of

opposition was found in "four citizens’ passing comments on

property values," such opposition was not substantial evi-

dence).

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 11

In any event, the district court’s order belies the City’s

notion that the court ruled "[w]ithout reviewing the evidence

presented to support the permit." Appellants’ Br. 16. To the

contrary, the district court noted that T-Mobile submitted its

application in response to customer complaints of a gap in cover-

age.9 The court also outlined the specifics of the tower, stating

that it would (1) be "located behind the elementary school,

and adjacent to a 150 foot wide wooded buffer," (2) consist

of "a 135-foot monopole tower, with flush mounted antennas

to minimize its profile," (3) not be surrounded by an equip-

ment shed, and (4) not be marked or lit. J.A. 439. Further, the

court took note of the balloon test conducted "to demonstrate

the visibility of the proposed tower" and of T-Mobile’s efforts

to field "questions about visual impact and radiation effects

from the tower." Id. Finally, the court observed that following

"review of an extensive report which considered the proposed

location and impact of the tower at Nelson Elementary," the

Planning Commission unanimously voted to recommend

approval. Id. In sum, we are satisfied that the district court

thoroughly reviewed the evidence supporting the permit and

did not impermissibly shift the burden to the City and its citi-

zens.

B.

Next, the City contends that the district court erred in find-

ing that its denial of the application is not supported by sub-

stantial evidence. We do not agree.

As our cases demonstrate, determining whether substantial

evidence supports the denial of an application submitted pur-

9

The City faults the district court for ignoring evidence that citizens

were satisfied with their cell phone coverage, thus calling into question the

need for a new tower. While the district court did not highlight this point,

the record shows that T-Mobile offered evidence regarding the need for

expanded coverage, including a petition signed by fifty-one customers.

See J.A. 173-79.

12 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

suant to the Act is necessarily a fact-intensive inquiry. For

example, in 360° Communications, we concluded that sub-

stantial evidence supported the Board’s denial of an applica-

tion to build a 100-foot tower on the ridgeline of a mountain.

211 F.3d at 85. There, at least ten citizens spoke against the

tower, "objecting [in part] to the tower’s visibility, its incon-

sistency with environmental preservation goals, and its impact

on the character of the area," and forty citizens signed a peti-

tion in opposition. Id. at 84. Additionally, there was evidence

that the tower would be inconsistent with the local plans and

ordinance. Id. On these facts, we found that the denial was

supported by substantial evidence.

We also upheld the Board’s denial of an application as sup-

ported by substantial evidence in AT & T Wireless PCS, Inc.

v. Winston-Salem Zoning Board of Adjustment, 172 F.3d 307,

315 (4th Cir. 1999). In Winston-Salem, eight neighborhood

residents testified that the proposed tower—"the first of its

kind in the area . . . ris[ing] well above the tree line"—would

negatively affect "the aesthetics and overall integrity of the

neighborhood." Id. One resident "testified that, in his experi-

ence as a mortgage banker, the tower would adversely affect

the resale value of the homes surrounding it." Id. In addition,

145 local residents signed a petition in opposition. Finally, the

Board considered evidence that the tower could negatively

affect a nearby historical house. Id. at 316 (adding that the

local historic resources planner "testified about the architec-

tural and historical significance of the [house], noting its cul-

tural importance to the entire Winston–Salem community").

We concluded that the Board considered "competent, material

and substantial evidence that a court must accept to support"

its denial of the application. Id. at 316-17.

In Virginia Beach, we emphasized "the repeated and wide-

spread opposition of a majority of the citizens . . . who voiced

their views—at the Planning Commission hearing, through

petitions, through letters, and at the City Council meeting,"

155 F.3d at 431, in finding substantial evidence for the city’s

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 13

denial of a permit application, id. at 430. Specifically, we

noted that "numerous area residents spoke against approval,

largely on the grounds that such a commercial use . . . was

improper in a residential area and that the towers . . . would

be eyesores," and two petitions—one with 90 and one with

over 700 signatures—were presented in opposition. Id. at 425.

Noting, in part, that the proposed tower "did not conform

to the Comprehensive Plan or to the Regional Approach," we

found substantial evidence supporting a denial in USCOC of

Virginia RSA #3 v. Montgomery County Board of Supervisors,

343 F.3d 262, 271 (4th Cir. 2003). See id. at 272 (noting that

the land was zoned "as ‘Agricultural’ and designated by the

Comprehensive Plan as ‘Conservation’," but the "construction

of a telecommunications tower is neither agricultural nor does

it appear to have any particular connection with conservation

goals," and local plans "discourage the construction of new

towers on ridge line lands designated as Agricultural or Con-

servation, precisely the type of land in question here").

And most recently, in New Cingular Wireless, PCS, LLC v.

Fairfax County Board of Supervisors, we concluded that the

denial was supported by substantial evidence where the Board

issued an eleven-page ruling explaining, in part, that the tower

was "only approximately 100 feet from two of the neighbor-

ing residences," "extend[ed] 38 feet above the closest tree,"

forty-seven community members signed a petition in opposi-

tion, and approximately twenty-one community members

attended a meeting to "discuss their opposition." No. 10-2381,

slip op. at 5 (4th Cir. Mar. 19, 2012).

Conversely, in Petersburg Cellular Partnership v. Board of

Supervisors of Nottoway County, 205 F.3d 688, 696 (4th Cir.

2000) (per curiam), we determined that the Board’s denial

was not supported by substantial evidence. Distinguishing

Winston-Salem and Virginia Beach, we noted that "[i]nstead

of opposition from hundreds of residents seeking to maintain

the character of the residential neighborhood in which they

14 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

live, we have four individuals . . . seeking to prevent construc-

tion of a tower in a commercially-zoned area based on specu-

lative safety concerns." Id. at 695. Despite one "passing"

concern that the tower would be an "eyesore," we identified

three "principal reasons" for the opposition: "(1) that pilots

will be confused and either crash planes into or try to land

planes on the tower, (2) that ‘boys [will] be boys’ and climb

the tower, and (3) that the tower will collapse onto people or

homes." Id. We found that a " ‘reasonable legislator’ would

not base his decision upon the irrational concerns of a few

constituents." Id. at 696. In so doing, we noted that "[t]he

number of persons expressing concerns, standing alone, does

not make evidence substantial, but it might be relevant to the

reasonableness of the concern." Id. at 695.

C.

Looking to the record in this case,10 we first note the

absence of "repeated and widespread opposition" to the tower.

See Virginia Beach, 155 F.3d at 431. In that regard, three resi-

dents spoke at the hearing in opposition to the application and

another sent an email voicing his opposition. The City does

not contend that the anemic turnout was attributable to lack of

information in the community. To the contrary, as Newport

News Mayor Joe Frank noted at the hearing, the City pro-

vided ample public notice of T-Mobile’s application, as did

the School Board and the Planning Commission. While we

eschew any bright line as to the number of residents who must

voice their opposition, we agree with the district court, see

J.A. 442, that the extent of the opposition is certainly relevant

in assessing whether substantial evidence supports a denial.

See Petersburg, 205 F.3d at 695 (noting that while "[t]he

number of persons expressing concerns, standing alone, does

10

In determining whether the denial is supported by substantial evi-

dence, we do not have the benefit of the City’s analysis. Accordingly, we

confine our review to the record evidence.

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 15

not make evidence substantial, [ ] it might be relevant to the

reasonableness of the concern").

As to the substance of the opposition, two citizens

expressed concerns regarding property values, arguing that

"the location of a tower in this residential area, [ ] has been

shown to drop property values," J.A. 156, and that "the

decrease in value of our homes" is not worth better cell phone

coverage, id. 161. While the testimony of a property owner is

"competent and admissible on the question of the value of

such property," the "weight of such testimony is, of course,

affected by his knowledge of the value." Haynes v. Glenn, 91

S.E.2d 433, 436 (Va. 1956) (citation omitted). And although

citizens need not come armed with professional knowledge or

expert reports to present testimony as to property values,

we—like the district court—ascribe little value to the vague

and uncorroborated concerns about property values expressed

in this case.

The record also shows that one citizen questioned whether

the area needed another "eyesore," J.A. 111, and another

stated that a similar tower at the local high school was clearly

visible, id. 157. We afford two passing comments about the

tower’s aesthetic impact little weight in our substantial evi-

dence analysis. See Petersburg, 205 F.3d at 695 (dismissing

as "passing" a single comment that the tower would be an

"eyesore," and considering instead the "principal reasons" for

opposition); cf. Sprint Spectrum, 578 F.3d at 733-34 (conclud-

ing that substantial evidence regarding aesthetic concerns

existed where a member of the zoning authority displayed an

aerial map in arguing that the tower would "visually dominate

an otherwise residential area," a report prepared by the local

planning and zoning department "reiterated these concerns,

noting that a tower of that magnitude would disrupt the resi-

dential setting in the area," and three residents expressed con-

cerns about the aesthetic impact of the tower).

We also agree with the district court that the concern that

workers servicing the tower might pose a risk to the students

16 T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS

was speculative and not something that a reasonable legislator

would consider. J.A. 442 n.5. Both the School Board and the

local police department—organizations tasked with ensuring

the safety of the students in Newport News—approved T-

Mobile’s application without raising a similar concern about

the risk posed by workers servicing the tower. See Peters-

burg, 205 F.3d at 696 (addressing concern that aircraft would

crash into the tower and noting that "[w]e cannot presume"

that the Federal Aviation Administration would have

approved the tower if such a risk existed). Accordingly, this

concern also commands little weight in our substantial evi-

dence analysis. See id. at 695 ("If . . . the concerns expressed

by a community are objectively unreasonable, such as con-

cerns based upon conjecture or speculation, then they lack

probative value and will not amount to substantial evi-

dence.").

The opponents of T-Mobile’s application were animated by

one additional factor; their concern about the health effects of

building a tower on school property. For example, Rachel

Weaver noted that residents had "questions about what the

exposure, radiation exposure is to the children" and added that

"I don’t want my son to sit there every day exposed to these

levels of radiation." J.A. 154, 158. Michael Charnock argued

that "[c]ell phone coverage is not worth . . . the decrease in

value of our homes, much less the repercussions of what

could happen to the children." Id. 161. He specifically men-

tioned ongoing research regarding brain cancer and cell phone

use. Id. Cliff Manuel contended that the School Board, as

"shepherds, overseers, caretakers of our children," should not

even "take the chance." Id. at 163. Similarly, Dennis Craw-

ford’s email began by noting that "I don’t think it is [in] the

children’s best interest to be located in the close proximity to

a tower for an entire day – every day." Id. at 111.

Certainly, the Act does not preclude residents from

expressing such concerns to their representatives. The Act is

equally clear, however, that potential health effects flowing

T-MOBILE v. CITY COUNCIL OF NEWPORT NEWS 17

from the grant of a conditional use permit have no place in a

decision to deny a permit, 47 U.S.C. § 332(c)(7)(B)(iv), nor

may we consider them on appeal. Once these concerns are

excised from the competent evidence, we, like the district

court, find that the record does not support the City’s denial

of T-Mobile’s application.11

V.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

11

The City also argues that the district court erred in (1) failing to grant

summary judgment in its favor on T-Mobile’s claim that the denial was

based on the environmental effects of the radio frequency emissions, in

violation of 47 U.S.C. § 332(c)(7)(B)(iv), and (2) concluding that the Act

requires the court to limit the evidence under review on the environmental

effects issue to that contained in the written record. Because we affirm the

district court’s judgment that the City’s denial is not supported by substan-

tial evidence, we do not reach these questions.