T-Mobile Northeast LLC v. Howard County Board of Appeals

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1682

T-MOBILE NORTHEAST LLC,

Plaintiff – Appellant,

v.

HOWARD COUNTY BOARD OF APPEALS,

Defendant – Appellee.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Richard D. Bennett, District Judge.

(1:11-cv-00729-RDB)

Argued: March 21, 2013 Decided: May 3, 2013

Before WILKINSON, KING, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion,

in which Judge Wilkinson and Judge King concurred.

ARGUED: Thomas Scott Thompson, DAVIS WRIGHT TREMAINE, LLP,

Washington, D.C., for Appellant. Melissa Shane Whipkey, HOWARD

COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appellee. ON

BRIEF: Margaret Ann Nolan, County Solicitor, HOWARD COUNTY

OFFICE OF LAW, Ellicott City, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

WYNN, Circuit Judge:

T-Mobile Northeast LLC (“T-Mobile”) challenges a zoning

decision by the Howard County Board of Appeals (the “Board”)

denying T-Mobile’s application for a conditional use permit to

construct a communications tower on the property of a church

located in the County. T-Mobile argues that the Board violated

the Telecommunications Act of 1996 in denying the company’s

permit application because the decision was not supported by

substantial evidence or, in the alternative, because it

effectively prohibited the provision of wireless services.

But our review reveals that substantial evidence supports

the Board’s conclusion that T-Mobile did not diligently seek to

site the tower on government property, as required by local

zoning regulations. And we cannot conclude that the Board’s

denial constitutes an effective prohibition of service because

T-Mobile did not demonstrate that there are no reasonable

alternatives to the church site to remedy its coverage

deficiency. Therefore, we affirm.

I.

T-Mobile, a licensed personal wireless services provider,

determined that it had a coverage deficiency along a portion of

Burntwoods Road in Howard County, Maryland. To remedy the

deficiency, T-Mobile sought to construct a new facility, a

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“stealth” telecommunications monopole, at the rear of Shepherd

of the Glen Lutheran Church property in Glenwood, Maryland (the

“site”). T-Mobile considered siting the facility at four other

locations-Glenelg High School, Walnut Springs Nursery,

Gethsemane Baptist Church, and a cluster of amateur “ham” radio

towers-but ultimately determined that each of these locations

was either not technically feasible or practically unavailable.

The site selected by T-Mobile is zoned as a Rural

Residential-Density Exchange Option District. Howard County’s

zoning regulations require a conditional use permit for the

construction of communications towers on Rural Residential-

Density Exchange Option District properties. In pertinent part,

Howard County’s zoning regulations provide:

The Hearing Authority shall have the power to permit

conditional uses, provided the following general

standards are met: . . .

The proposed use at the proposed location will not

have adverse effects on vicinal properties above and

beyond those ordinarily associated with such uses. In

evaluating the plan under this standard, the Hearing

Authority shall consider whether: . . .

The ingress and egress drives will provide safe access

with adequate sight distance, based on actual

conditions, and with adequate acceleration and

deceleration lanes where appropriate. . . .

An applicant for a new communication tower shall

demonstrate that a diligent effort has been made to

locate the proposed communication facilities on a

government structure or, on an existing structure or

within a nonresidential zoning district, and that due

to valid considerations, including physical

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constraints, and economic or technological

feasibility, no appropriate location is available.

Howard County Zoning Regulations §§ 131.B, 131.N.14.b.(1). The

regulations also provide that

The applicant for a conditional use shall have the

burden of proof, which shall be by a preponderance of

the evidence and which shall include the burden of

going forward with the evidence and the burden of

persuasion on all questions of fact which are to be

determined by the Hearing Authority or are required to

meet any provisions of these regulations.

Id. § 131.G.

On November 20, 2009, T-Mobile submitted a “Conditional Use

Petition” to the Howard County Hearing Authority requesting to

build a wireless facility on the site. On February 18, 2010,

the Howard County Department of Planning and Zoning issued a

Technical Staff Report finding that T-Mobile had satisfied the

criteria for a conditional use permit and recommending that T-

Mobile’s petition be granted.

After holding a hearing, the Hearing Examiner issued a

decision denying T-Mobile’s petition on March 15, 2010. In so

ruling, the Hearing Examiner found there were no “sight

distance” or safe access issues and that T-Mobile had complied

with regulations regarding the investigation of alternative

sites, but denied the petition due to concerns over the size of

T-Mobile’s proposed equipment compound.

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T-Mobile appealed to the Board. The Board held three

public hearings concerning T-Mobile’s application during which

participants questioned T-Mobile’s efforts to site the facility

at alternative locations. In particular, Board members

expressed concern that T-Mobile had not engaged in formal

negotiations with Glenelg High School to locate the facility

there. The Board denied T-Mobile’s petition on February 16,

2011 on grounds that the company had failed to meet its burden

to demonstrate that the proposed ingress and egress to the site

would “provide safe access with adequate sight distance” and to

show that it had made a diligent effort to site the facility on

government property. J.A. 135.

T-Mobile brought the present action in federal district

court on March 18, 2011, seeking declaratory and injunctive

relief from the Board’s decision. Specifically, T-Mobile

alleged that the Board’s denial of the company’s permit

application violated two provisions of the Telecommunications

Act, 47 U.S.C. § 332(c)(7)(B)(i)(II) and (B)(iii), and Maryland

law. T-Mobile moved for summary judgment on August 26, 2011,

and soon thereafter the Board filed a cross-motion for summary

judgment. On March 30, 2012, the district court denied T-

Mobile’s motion and entered summary judgment in favor of the

Board. T-Mobile Ne. LLC v. Howard Cnty. Bd. of Appeals, 2012 WL

1123043, at *10 (D. Md. March 30, 2012) (“Howard County”).

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Following the district court’s denial of T-Mobile’s Motion to

Reconsider, T-Mobile timely appealed to this Court.

II.

We review a district court’s decision on summary judgment

de novo, “applying the same legal standards as the district

court.” T-Mobile Ne. LLC v. City of Newport News, Va., 674 F.3d

380, 384-85 (4th Cir. 2012) (“Newport News”) (quotation

omitted). “The court shall grant summary judgment 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). In determining whether a party is

entitled to summary judgment, we consider “all facts and

reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Newport News, 674 F.3d at 385 (quotation

marks omitted).

On appeal, T-Mobile contends that the district court’s

decision was contrary to the Telecommunications Act, which

Congress enacted to facilitate the development and proliferation

of new telecommunications technology and infrastructure. See

Pub. L. No. 104-104, 110 Stat. 56 (1996). In drafting the

statute, Congress sought to preserve local and state

governments’ traditional control over land use and zoning

decisions, while also ensuring their decisions did not

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constitute an undue impediment to the rapid deployment of

wireless communications technology. 360̊ Commc’ns Co. of

Charlottesville v. Bd. of Supervisors of Albemarle Cnty., 211

F.3d 79, 86 (4th Cir. 2011) (“Albemarle County”).

T-Mobile argues that the Board’s decision ran afoul of two

provisions of the Telecommunications Act: (1) Section

332(c)(7)(B)(iii), which requires that state or municipal

decisions denying an application to construct a wireless service

facility be “supported by substantial evidence,” and (2) Section

332(c)(7)(B)(i)(II), which provides that “[t]he regulation of

the placement, construction, and modification of personal

wireless service facilities by any State or local government . .

. shall not prohibit or have the effect of prohibiting the

provision of personal wireless services.” 1 We disagree.

1

T-Mobile also contends that the Board’s decision violated

Maryland Law, which requires that a Board’s decision be in

accordance with local zoning regulations and supported by facts

in the record. Md. Code. Ann. art 25A, § 5; J.A. 23-24. To

satisfy Section 332(c)(7)(B)(iii)’s substantial evidence

requirement, a zoning decision must comply with state and

municipal zoning law. Mobile Cent., LLC v. Wyandotte Cnty., 546

F.3d 1299, 1307 (10th Cir. 2008); MetroPCS, Inc. v. City &

Cnty. of San Francisco, 400 F.3d 715, 723–24 (9th Cir. 2005);

Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d

Cir. 1999). Thus, as the district court correctly concluded, T-

Mobile’s contention that the decision was not in accord with

Maryland law merges with its substantial evidence claim under

the Telecommunications Act. Howard Cnty., 2012 WL 1123043, at

*4.

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A.

For purposes of actions under Section 332(c)(7)(B)(iii), we

have held that “ ‘[s]ubstantial evidence’ is more than a mere

scintilla, but less than a preponderance,” Newport News, 674

F.3d at 385, and is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion,” AT&T

Wireless PCS, Inc. v. City Council of the City of Virginia

Beach, 155 F.3d 423, 430 (4th Cir. 1998) (quoting Universal

Camera v. NLRB, 340 U.S. 474, 488 (1951)). Under this standard,

we must affirm if the Board’s decision was reasonable, even if

we would have reached a different conclusion independently.

Newport News, 674 F.3d at 386.

T-Mobile contends that substantial evidence did not support

the Board’s conclusion that T-Mobile failed to make a diligent

effort to site the facility on government property, as required

by local regulations. Howard County Zoning Regulations §

131.N.14.b.(1). In particular, the Board found that T-Mobile

failed to make adequate efforts to site the facility at Glenelg

High School because the company

made only telephone calls to the Howard County School

Facilities Office about building a telecommunications

light pole at the Glenelg High School [and] had not

identified anyone [it] had talked to as having

authority to decide on acceptance of the monopole

installation on the particular property. More

importantly, [T-Mobile] had not demonstrated to the

Board that it had submitted written proposals with

specifications to any person of authority to obtain

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acceptance of installation of the monopole on a

particular property. A telephone call to an entity

without more regarding locating a cell tower on a

particular property is hardly sufficient to comport

with the requirement of “diligent effort.”

J.A. 136.

On appeal, T-Mobile argues that it diligently sought to

site the tower at Glenelg High School as evidenced by the fact

that it received (1) a verbal rejection from an unidentified

employee with the Howard County Public School System (the

“School System”) facilities office and, subsequently, (2) a

written rejection from School System Chief Operating Officer

Teresa Alban.

Regarding the verbal rejection, Mearl Kemberling, a site

acquisition specialist for T-Mobile, made a phone call to the

School System facilities office to gauge its interest in placing

the facility on Glenelg High School grounds. Kemberling

attested that the person he spoke with said the facilities

office recently had rejected a proposal from AT&T Wireless to

build a telecommunications facility at the high school and was

not interested in T-Mobile’s offer either.

But Kemberling was unable to identify the person with whom

he spoke and did not know if that person had authority to make a

decision regarding whether to install a wireless facility on

school property. Nor could Kemberling provide any written

record of the phone call, contending it had been destroyed in a

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flood. Indeed, during oral argument on the summary judgment

motions, T-Mobile’s counsel acknowledged that Kemberling “was a

little bit sloppy” and “should have at least kept track of who

he was talking to and what their position was.” J.A. 596–97.

In such circumstances, we cannot say that the Board unreasonably

concluded that Kemberling’s single phone call did not constitute

a diligent effort to site the facility at Glenelg High School.

Additionally, School System Chief Operating Officer Alban’s

letter to T-Mobile, dated October 11, 2010, stated simply: “Per

your request to provide a written statement, our response is

that we have denied the request to put a cell phone tower on

school system property.” J.A. 123. T-Mobile contends that this

letter was an “unequivocal[]” denial of its request to install a

wireless facility at Glenelg High School. Appellant’s Br. at

36.

But, as the district court correctly noted, the letter was

issued the day before the Board’s last hearing on T-Mobile’s

application and “did not contain any specifics as to the

request.” Howard Cnty., 2012 WL 1123043, at *6. T-Mobile also

failed to produce any independent documentation regarding the

specifics of its “request.” Moreover, given the letter’s

brevity, we cannot determine whether the letter rejected a

particular proposal from T-Mobile or generally denied all

requests to install wireless facilities at the school. Thus,

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the Board reasonably concluded that the letter did not satisfy

T-Mobile’s burden to show that it had made a diligent effort to

locate the tower at Glenelg High School, and therefore the Board

did not commit reversible error in denying T-Mobile’s

application. 2

B.

Having determined that substantial evidence supports the

Board’s decision, we next must decide whether the denial of T-

Mobile’s permit application is “tantamount” to a general

prohibition of service, in violation of Section

332(c)(7)(B)(i)(II). T-Mobile Ne. LLC v. Fairfax Cnty. Bd. of

Supervisors, 672 F.3d 259, 266 (4th Cir. 2012) (“Fairfax

County”).

To prevail on a theory that the denial of a petition for a

particular site effectively prohibits service, a plaintiff must

show (1) that there is “a legally cognizable deficit in coverage

amounting to an effective absence of coverage, and (2) that it

lacks reasonable alternative sites to provide coverage.” Id. at

268. “[A] plaintiff’s burden to prove a violation of [Section

2

Because substantial evidence supports the Board’s

conclusion that T-Mobile failed to make diligent efforts to site

the facility on government property, we need not address the

Board’s alternative basis for denying T-Mobile’s petition-that

T-Mobile failed to provide adequate evidence of safe access to

the site.

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332(c)(7)(B)(i)(II)] is substantial and is particularly heavy

when . . . the plaintiff already provides some level of wireless

service to the area.” Id. If a plaintiff fails to meet its

burden on either of the two prongs, it is not entitled to

relief. Id. at 266, 268.

To show a lack of reasonable alternative sites, a plaintiff

must “demonstrate that further reasonable efforts to gain

approval for alternative facilities would be fruitless.” New

Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. of Sup’rs (“New

Cingular II”), 674 F.3d 270, 277 (4th Cir. 2012) (quoting

Fairfax Cnty., 872 F.3d at 268). This burden is satisfied if

the plaintiff shows that reasonable efforts to obtain approval

for alternative sites are “so likely to be fruitless that it is

a waste of time to try.” Id. at 277 (quotations omitted). In

assessing whether further efforts to gain approval of

alternative facilities would be “fruitless,” we also consider a

zoning board’s past decisions on applications for wireless

facilities. Fairfax Cnty., 672 F.3d at 269.

Here, T-Mobile does not dispute that there is some level of

wireless coverage in the area. J.A. 450-56 (noting, in an

expert report prepared for and relied upon by T-Mobile, that

there is not “reliable” in-building and in-vehicle wireless

coverage in the area served by the proposed site). Thus, T-

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Mobile’s burden to show a lack of reasonable alternatives is

“particularly heavy.” Fairfax Cnty., 672 F.3d at 268.

As we explained previously, the Board reasonably determined

that T-Mobile failed to produce sufficient evidence that it

diligently pursued siting the facility at Glenelg High School.

See supra Part II.A. In such circumstances, we cannot presently

conclude that T-Mobile has met its “particularly heavy” burden

of showing that further efforts to locate the facility at an

alternative site-Glenelg High School, in particular-would be

“fruitless.” Moreover, it is undisputed that the Board has a

strong record of approving conditional use permits: Since

October 2008, the Board has approved five of the six conditional

use permit applications submitted by T-Mobile. Therefore,

because T-Mobile has failed to satisfy its burden of showing a

lack of reasonable alternatives to the proposed site, it is not

entitled to relief under Section 332(c)(7)(B)(i)(II). 3

III.

In sum, substantial evidence supported the Board’s decision

that T-Mobile failed to make diligent efforts to site the

facility at Glenelg High School. And T-Mobile did not satisfy

3

Because we conclude that T-Mobile failed to satisfy its

burden on the lack of reasonable alternatives prong, we need

not, and thus do not, address the effective absence of coverage

prong. Fairfax Cnty., 672 F.3d at 266, 268.

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its “particularly heavy” burden to show that there were no

reasonable alternative sites to provide coverage. Accordingly,

we affirm.

AFFIRMED

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