360° COMMUNICATIONS COMPANY OF CHARLOTTESVILLE, Plaintiff-Appellee, v. The BOARD OF SUPERVISORS OF ALBEMARLE COUNTY, Defendant-Appellant.
Nos. 99-1816, 99-1897
United States Court of Appeals, Fourth Circuit
March 15, 2000
211 F.3d 79
360° Communications Company of Charlottesville, Plaintiff-Appellant, v. The Board of Supervisors of Albemarle County, Defendant-Appellee.
Kevin Dudley; Barbara Dudley; Carr Dorman; Margaret Dorman; Jacob Loeser; Connie Loeser; Stephen Innes; Bill O. Mahone; Irma Mahone; Maryanne Rodeheaver; Stephen Thornton; M. Bird Woods; T.K. Woods, Jr.; David Vanroijen; James McIlnay; Molly McIlnay; Julia Schneider; Mitch McCullough; Edward L. Ayers; Abby Ayers; Piedmont Environmental Council; Citizens for Fauquier County; Scenic America; Local Government Attorneys Association of Virginia, Incorporated; Virginia Association of Counties; Virginia Municipal League; Appalachian Trail Conference, Amici Curiae.
Argued: Jan. 24, 2000
Decided: March 15, 2000
ment of the Virgin Islands v. Carmona, 422 F.2d 95 (3d Cir.1970) in that it wrongly held that the Virgin Islands robbery statute includes the element of specific intent. The Attorney General argued that the legislative history surrounding the 1957 statutory amendment to the Virgin Islands robbery statute indicates that the legislature intended to eliminate the element of specific intent from the statute. Although we may be persuaded by the Attorney General‘s excellent amicus brief, we acknowledge that we are powerless to redress this concern. Rule 9.1 of our Internal Operating Procedures does not permit one panel of this court to overrule a holding of a prior published opinion. Carmona may only be overruled by an en banc decision of this entire court or by a decision of the Supreme Court. Of course, the Virgin Islands legislature remains free to remove any confusion stemming from the interpretation of its robbery statute by enacting appropriate legislation to redress the problem.
Before NIEMEYER, Circuit Judge, CHASANOW, United States District Judge for the District of Maryland, sitting by designation, and DAVIS, United States District Judge for the District of Maryland, sitting by designation.
Reversed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge CHASANOW and Judge DAVIS joined.
OPINION
NIEMEYER, Circuit Judge:
Applying the Telecommunications Act of 1996, the district court entered an injunction, on the motion of 360° Communications, Inc., directing the Albemarle County (Virginia) Board of Supervisors to issue a special-use permit to 360° Communications for the construction of a wireless communications tower on Dudley Mountain in Albemarle County. While the court concluded that the Board‘s denial of the permit application was supported by substantial evidence—a conclusion with which we agree—it held that the denial of the permit had “the effect of prohibiting the provision of personal wireless services” to the County, in violation of
I
360° Communications, Inc., a licensed provider of wireless telephone services, submitted an application to the Albemarle County (Virginia) Board of Supervisors for a special-use permit to erect one or more telecommunications towers near the top of Dudley Mountain in Albemarle County. 360° Communications maintained that the southern part of the County was not being provided adequate wireless service and that there were gaps in coverage of the area. Following a meeting with the staff of the Albemarle County Planning Commission, 360° Communications refined its application to request approval of only one 100-foot tower on the ridgeline of Dudley Mountain that would extend approximately 40-50 feet above the tree canopy. Dudley Mountain, which rises approximately 1550 feet above sea level, is located between U.S. Route 29 on the west and Virginia Route 706 on the east, south of Charlottesville, Virginia. 360° Communications indicated that in constructing the tower, it would use a lattice design, painted medium-gray, and antenna mounts that would minimize the tower‘s profile.
At the hearing before the Board of Supervisors, 360° Communications presented evidence that it had been receiving about 20 calls per week complaining about inadequate wireless service in the Dudley Mountain area and that the proposed site on Dudley Mountain was the optimal location from which to provide the service. It presented evidence that because of the density of the forest, the tower needed to be 40 feet above the tree canopy in order to provide effective coverage. 360° Communications claimed that the proposed tower would be as invisible as a tower could be and still perform its intended function, and it provided photographs of the mountain that depicted a barely visible red balloon, five feet in diameter, to identify the proposed location of the tower. It assured the Board that it had met the planning staff‘s conditions for the access road to the site. 360° Communications’ witnesses discussed alternatives to the single tower, including the use of six 100-foot towers at sites below the mountain ridgeline to cover the areas both to the east and west sides of the mountain or the use of 20 to 24 60-foot poles along the sides of the roads near Dudley Mountain.
Ten citizens spoke against the proposed tower, generally voicing concerns about its visibility, its inconsistency with the community‘s environmental preservation goals, and its impact on the character of the area. The only citizen who supported the application was the owner of the land on which the tower would be erected. Opposing citizens testified that they already enjoyed adequate cellular coverage in the area of the mountain and that, in any event, satellite communications would replace cellular service in the near future. Citizens complained about potential erosion, and one citizen, whose property was contiguous to that on which the tower would be located, testified that he placed his land in a conservation easement “just so this sort of thing would not happen.” One citizen presented a petition opposing the tower signed by 40 people, and another presented a slide show showing pictures of the mountain.
The Board of Supervisors denied the application by unanimous vote. It determined that the proposed tower would conflict with the County‘s Comprehensive Plan and Open Space Plan, which encouraged the protection of mountains and rural areas and discouraged activities that would alter the continuity of the County‘s mountain ridgelines or disrupt the natural balance of the soils, slope, and vegetation of mountainous areas. It concluded that the tower would also conflict with guidelines recommended for mountain resource areas, of which the proposed site was a part. The Board also determined that the proposed tower would conflict with the Albemarle County Zoning Ordinance in that (1) the proposed tower would be only 40 feet from the nearest property line despite its height of 100 feet; (2) its access road would disturb steep, critical slopes; (3) the tower would change the rural character of the district due to its visibility on a wooded, sparsely populated mountain ridgeline; and (4) the tower was detrimental to the creation of a “convenient, attractive and
360° Communications commenced this action under
II
In Virginia Beach, we concluded that the substantial opposition from local residents to an application for two cellular towers based on their rational fears that the towers would damage the character of their residentially zoned neighborhood, which contained no significant commercial development, no commercial antenna towers, and no above-ground power lines, amounted to “substantial evidence” and
Upon judicial review of a local board‘s denial of a siting permit application, courts must uphold the board‘s action if it has “substantial support in the record as a whole.” Virginia Beach, 155 F.3d at 430 (quoting Grand Canyon, 116 F.3d at 1044). Courts are not free to substitute their own judgment for that of the board, even if they would decide the matter differently as an original matter. See id. We review the district court‘s judgment in such cases de novo. See Pleasant Valley Hosp. v. Shalala, 32 F.3d 67, 69 (4th Cir. 1994).
In the record made before the Board of Supervisors, it is undisputed that the proposed tower would rise from the ridgeline of Dudley Mountain and extend 40 to 50 feet above the tree canopy. Except for the property owner who had intended to lease the property to 360° Communications to build the tower, the citizens of Albemarle County spoke unanimously in opposition to the tower siting. Thirteen spoke in opposition at the public hearing before the Planning Commission on June 2, 1998, giving varying reasons. Similarly, at the meeting of the Board of Supervisors on August 12, 1998, ten citizens spoke in opposition, objecting to the tower‘s visibility, its inconsistency with environmental preservation goals, and its impact on the character of the area. Also, 40 citizens signed a petition opposing the proposed siting of the tower.
In addition to this virtually unanimous citizen opposition, the Board of Supervisors had evidence before it that the proposed tower would be inconsistent with the Comprehensive Plan, the Open Space Plan, and the County‘s Zoning Ordinance. The Comprehensive Plan and Open Space Plan note that “any serious modification of the natural ridge lines in the County will modify the visual character of an entire area,” that “activities which alter the continuity of the ridge line . . . should be discouraged,” and that “issues related to soil erosion [and] surface water runoff” are amplified in mountainous areas. The Zoning Ordinance provides that the Board must find that the proposed use
will not be of substantial detriment to adjacent property, that the character of the district will not be changed thereby, and that such use will be in harmony with the purpose and intent of [the zoning] ordinance, with the uses permitted by right in the district, with additional regulations provided in [the] ordinance, and with the public health, safety and general welfare.
To be sure, 360° Communications presented evidence that the tower would be constructed to stand with minimal visibility and that the site would be optimal for providing service in southern Albemarle
Upon our view of the record, we conclude that the decision of the Albemarle County Board of Supervisors to deny 360° Communications’ application for a special-use permit had substantial support in the record as a whole, in satisfaction of
III
Although the district court correctly found that the Board of Supervisors’ decision to deny 360° Communications’ permit was supported by substantial evidence, the court concluded that the denial of the permit had “the effect of prohibiting the provision of personal wireless services,” in violation of
an alternative . . . must, at a minimum, provide a high level of wireless service, its cost must be within or close to the industry-wide norm for establishing new service under similar circumstances, it must employ commonly used technology, and it must be logistically feasible.
Id. The court also concluded that the Board of Supervisors was hostile to the construction of wireless towers on mountains and that a remand “would serve no useful purpose.” Id. at 564. Accordingly, it entered an order enjoining the Board of Supervisors to “issue any required permits within 45 days.” Id. at 552.
The Board of Supervisors challenges the district court‘s conclusions based both on the court‘s interpretation of the evidence and on the legal standard it applied. The Board points to the fact that reasonable alternatives did exist and that the Board had a record of granting permits for communications towers, having denied only a few. In challenging the legal test devised by the district court, the Board states that the test would “enable[] wireless service providers to disregard local zoning authority merely by proposing towers that will provide the greatest coverage in a single tower by, for example, locating on a mountain top or using a very tall tower.” In addition, the Board argues that there is no evidence in the record to suggest that the cost to erect one or more towers on alternative sites would be prohibitive or that it would be difficult for 360° Communications to obtain acceptable alternative sites.
360° Communications urges approval of the district court‘s conclusion, arguing that in the circumstances, the Board of Supervisors’ denial of the special-use permit amounts to a “general ban or moratorium.” It notes that because of the topography in Albemarle County, the placement of “some towers on some mountaintops” is necessary to provide “effective [wireless] coverage.” (Emphasis in original). The issue thus presented is how properly to apply
Congress enacted the Telecommunications Act “to promote competition and re-
The particular limitation at issue in this case reads in pertinent part: “The [local] regulation of the placement . . . of personal wireless service facilities . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
Certainly, local policies or general bans against any siting of wire-less service facilities would violate (B)(i)(II). See Virginia Beach, 155 F.3d at 428; see also Town of Amherst v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 14 (1st Cir. 1999). Moreover, indications by a local government that repeated individual applications will be denied because of a generalized hostility to wireless services could also violate (B)(i)(II). But whether a single denial of a site permit could ever amount in effect to the prohibition of wireless services is a more difficult question, and it is the question with which we are here presented. Because the simple fact of denial with respect to a particular site is not enough, there must be something more, taken from the circumstances of the particular application or from the procedure for processing the application, that produces the “effect” of prohibiting wireless services.
Thus, conceptually, if wireless service could feasibly be provided from only one
Moreover, because (B)(i)(II) is aimed at facilitating the development of wireless services, to evaluate whether that provision has been violated, we must determine what level of services is protected by (B)(i)(II). The Act obviously cannot require that wireless services provide 100% coverage. In recognition of this reality, federal regulations contemplate the existence of dead spots, defined as “small areas within a service area where the field strength is lower than the minimum level for reliable service.”
Concluding that a single denial could, in certain circumstances, violate (B)(i)(II), the Second and Third Circuits have adopted an interpretation of (B)(i)(II) under which the denial of a permit for a site that is “the least intrusive means to close a significant gap in service” would amount to a denial of wireless services in violation of that section. See APT Pittsburgh Ltd. Partnership v. Penn Township, 196 F.3d 469, 480 (3d Cir.1999); Sprint Spectrum, 176 F.3d at 643; see also Cellular Telephone Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir. 1999). This interpretive rule effectively creates a presumption, shifting the burden of production to the local government to explain its reason for denying such an application. But, as an interpretation of the Telecommunications Act, we believe this rule reads too much into the Act, unduly limiting what is essentially a fact-bound inquiry. A community could rationally reject the least intrusive proposal in favor of a more intrusive proposal that provides better service or that better promotes commercial goals of the community.
Even if we were to apply the rule formulated by the Second and Third Circuits, determinations about what constitutes the “least intrusive means” and “a significant gap” in services, would, we believe, quickly devolve into the broader inquiry indicated by the language of the statute: “Does the denial of a permit for a particular site have the effect of prohibiting wireless services?” We believe that this statutory question requires no additional formulation and can best be answered through the case-by-case analysis that the Act anticipates. See Virginia Beach, 155 F.3d at 428-29.
Accordingly, it is clear that the test devised by the district court reads far more into (B)(i)(II) than is written in the statute. The district court erroneously concluded that the denial of a permit for a particular site amounts to a prohibition of wireless service if the provider shows that it cannot through another site provide “a high level of wireless service” at a cost “within or close to the industry wide norm for establishing new service.” 360° Communications, 50 F.Supp.2d at 563.
In the case before us, genuine factual disputes exist about whether there is an absence of service in the southern part of Albemarle County. If we assume that sig-
Not only has 360° Communications failed to meet its heavy burden in demonstrating that the Board of Supervisors’ denial of a permit for a particular site amounts to a general prohibition of service, but the Board of Supervisors has also provided affirmative evidence to the contrary. It demonstrated that it has approved 18 applications for wireless service facilities, including several from 360° Communications and a few for towers in mountain regions.
In summary, we conclude that the Board of Supervisors’ decision to deny 360° Communications’ application for a special permit to install a tower on the ridgeline of Dudley Mountain is supported by substantial evidence in the record. We also conclude that there is insufficient evidence in the record from which to conclude that the Board‘s denial of this single permit had the effect of “prohibiting the provision of personal wireless services,” in violation of
REVERSED.