New Cingular Wireless PCS, LLC v. Fairfax County Board of Supervisors
674 F.3d 270
| 4th Cir. | 2012Background
- AT&T sought to build an 88-foot tower (tree monopole) and accompanying storage shed behind a Masonic lodge in a residential Fairfax County neighborhood, requiring a special exception under local zoning.
- Planning Commission recommended approval of the zoning (per the Comprehensive Plan), but the Fairfax County Board of Supervisors denied the special exception after considering community opposition and zoning standards.
- The Board found the facility would not harmonize with the zoning ordinance or Comprehensive Plan and would have high visual impact, declining to approve the request.
- AT&T challenged the Board decision under 47 U.S.C. § 332(c)(7)(B)(iii) (substantial evidence) and § 332(c)(7)(B)(i)(II) (not prohibiting service), with the district court granting summary judgment for the Board.
- The Fourth Circuit affirmed, holding substantial evidence supported the denial and AT&T failed to prove the denial amounted to a general prohibition of service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantial-evidence standard met? | AT&T contends the record lacks substantial evidence to deny. | Board's findings tied to zoning/Comprehensive Plan and visual impact. | Yes; denial supported by substantial evidence. |
| Prohibition of service under § 332(c)(7)(B)(i)(II)? | Denial tantamount to a lack of reasonable alternatives and absence of service. | No general policy prohibiting service; alternatives exist; evidence insufficient. | AT&T failed to prove lack of reasonable alternatives; no prohibition. |
Key Cases Cited
- AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307 (4th Cir.1999) (substantial-evidence review in local zoning decisions)
- AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423 (4th Cir.1998) (zoning/Comprehensive Plan alignment can support denial)
- 360° Communications Co. of Charlottesville v. Bd. of Sup'rs of Albemarle County, 211 F.3d 79 (4th Cir.2000) (evidence of inconsistencies with plan/ordinances supports denial)
- USCOC of Va. RSA #3 v. Montgomery Cnty. Bd. of Sup'rs, 343 F.3d 262 (4th Cir.2003) (absence of reasonable alternatives evidence standard)
- Albemarle County v. Town of Amherst, 173 F.3d 9 (1st Cir.1999) (need to show futility of further efforts for prohibition)
- Nottoway County v. Bd. of Sup'rs of Nottoway County, 205 F.3d 688 (4th Cir.2000) (reasonable-legislator standard for substantial-evidence review)
- T-Mobile Northeast, LLC v. Fairfax County Bd. of Supervisors, 672 F.3d 259 (4th Cir.2012) (reaffirmed standards for § 332(b)(i)(II) evidence of lack of coverage/alternatives)
- Montgomery County v. USCOC of Va., 343 F.3d 262 (4th Cir.2003) (plaintiff must show lack of reasonable alternatives and futile efforts)
- Virginia Beach v. AT&T Wireless PCS, 155 F.3d 423 (4th Cir.1998) (substantial evidence review; policy considerations)