T-Mobile Northeast LLC v. City Council of Newport News, Va., No. 11-1293

Decided Mar. 26, 2012

T-Mobile sought to construct a wireless cell tower on the property of Nelson Elementary School. After a study was conducted that showed that the area was a viable location and that the tower “should not unduly impact the adjacent residences,” the city Planning Commission voted unanimously to grant a conditional use permit allowing T-Mobile to lease the land and build its tower. However, after a public hearing during which several local residents voiced concerns about the potential health effects the tower could cause to the schoolchildren, the city council voted without explanation to deny the permit. T-Mobile sued, alleging violations of the Telecommunications Act—specifically a lack of substantial evidence for the city’s decision and unlawful reliance on health concerns despite the tower’s compliance with federal regulations.

The district court granted summary judgment for T-Mobile and the city appealed. The city argued that the district court shifted the burden of proof away from T-Mobile and onto the city. However, the Fourth Circuit held that the record indicated the court had fully reviewed the evidence and found that the city council did not provide substantial evidence for its denial in light of a favorable report on the tower and a unanimous vote to adopt by the Planning Commission. Almost all of the testimony against the tower voiced concerns for the students’ health, which, while a valid concern for the community, is an impermissible basis under the law for denying a permit.

Full Opinion

-C. Alexander Cable

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