Decided: April 3, 2014
The Fourth Circuit affirmed the district court’s decision by holding the following: (1) that the Loudoun County Board of Supervisors (Board) improperly denied T-Mobile Northeast’s, LLC, (T-Mobile) permit to build a telecommunications tower at the “Silo Site” because the Board based the decision on environmental effects in violation of the Telecommunications Act of 1996 (the Act); and (2) that the Board’s decision to deny T-Mobile’s permit to build a tower at the “Bell Tower” site was based on substantial evidence, and did not violate the Act.
T-Mobile applied to the Board seeking special exception permits required for the construction of two telecommunications facility sites in Loudoun County, Virginia. T-Mobile’s proposed sites included the “Silo Site”— a 90-foot antenna disguised as a silo on a privately owned farm—and the “Bell Tower Site”— an 80-foot bell tower on church property to house an antenna. The Act limits state and local governments’ ability to freely regulate wireless facilities. For example, the Act expressly prohibits regulation decisions based on the environmental effects of radio frequency emissions.
The Board denied the special exception permit for the Silo Site for the following reasons: (1) the proposed design created “an unnecessary visual impact on surrounding properties”; (2) the height of the silo did not “blend with the . . . surrounding area”; (3) a denial of the application would not prohibit “the provision of personal wireless services in this area”; and (4) the facility would have a “negative environmental impact.” On appeal, the district court held that the Board improperly denied T-Mobile’s permit for the Silo Site by relying on the potential environmental effects of the tower. The court entered an injunction requiring that the Board issue T-Mobile the necessary permits to build the Silo Tower.
The Board denied the special exception permit for the Bell Tower site for the following reasons: (1) it was not a preferred location; (2) it was not on an existing structure; and (3) it did not mitigate the impact on adjacent residential uses. On appeal, the district court affirmed the Board’s decision, stating that substantial evidence existed in support of the Board’s rejection.
In affirming the district court’s decision on the Silo Site, the Fourth Circuit reasoned that despite the three valid reasons the Board provided for rejecting T-Mobile’s permit, the fourth reason, environmental concerns, still violated the Act. The Court also affirmed the district court’s decision not to remand the case to the Board for a decision based on permissible reasons. The Court reasoned that allowing the Board to simply remove the impermissible basis for denying the application would circumvent Congress’s express prohibition on using environmental concerns as the basis for a decision; even if not reflected in the written statement, the environmental concerns would remain a reason for the Board’s denial.
With respect to the Bell Tower Site, the Court reasoned that those residents’ concerns about aesthetics, effects on property value, and noise pollution constituted substantial evidence in support of the Board’s decision to deny the permit. Because T-Mobile failed to provide sufficient evidence that no reasonable alternative sites existed, the Court rejected the claim that the denial of the permit prevented T-Mobile from providing wireless service, in violation of the Act. The Court also rejected T-Mobile’s claim that the Board’s decision was based on concern of the environmental effects of radio wave emissions. While citizens voiced their concerns about the tower’s effect on their health, the Act does not prevent such expression, and there was no evidence that the potential health and environmental effects formed any basis for the Board’s decision. Therefore the Fourth Circuit affirmed the district court’s decision with respect to both of T-Mobile’s permits, and allowed T-Mobile to build at the Silo Site, but not the Bell Tower Site.
– Amanda K. Reasoner