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UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

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UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT - PPT Presentation

ARGUEDcago Illinois for Appellant Laura Schempf Gori COUNTYATTORNEYS OFFICE Fairfax Virginia for Appellee BRIEFCAMPBELL PC Washington DC John E Muench NissaJ Imbrock MAYER BROWN ID: 302330

ARGUED:cago Illinois for Appellant. Laura

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UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT üNEW CINGULAR WIRELESS PCS,LLC, d/b/a AT&T Mobility,Plaintiff-Appellant,v.No. 10-2381ýTHE FAIRFAX COUNTY BOARD OFSUPERVISORS,Defendant-Appellee.þAppeal from the United States District Courtfor the Eastern District of Virginia, at Alexandria.Leonie M. Brinkema, District Judge.(1:10-cv-00283-LMB-TRJ)Argued: January 26, 2012Decided: March 19, 2012Before AGEE, DAVIS, and FLOYD, Circuit Judges.Affirmed by published opinion. Judge Agee wrote the opin-ion, in which Judge Davis and Judge Floyd joined. JudgeDavis wrote a separate concurring opinion. ARGUED:cago, Illinois, for Appellant. Laura Schempf Gori, COUNTYATTORNEY'S OFFICE, Fairfax, Virginia, for Appellee. BRIEF:CAMPBELL, PC, Washington, D.C.; John E. Muench, NissaJ. Imbrock, MAYER BROWN, LLP, Chicago, Illinois, forAppellant. David P. Bobzien, County Attorney, ElizabethDoyle Teare, Senior Assistant County Attorney, COUNTYATTORNEY'S OFFICE, Fairfax, Virginia, for Appellee. OPINIONAGEE, Circuit Judge:The Telecommunications Act of 1996 ("the Act") requiresthat a local government's denial of a request to place "per-sonal wireless service facilities" be supported by substantialevidence, and not "have the effect of prohibiting the provisionof personal wireless services." 47 U.S.C.§§ 332(c)(7)(B)(i)(II) & 332(c)(7)(B)(iii). In this case, theBoard of Supervisors of Fairfax County, Virginia ("theBoard") rejected the application of New Cingular Wireless("AT&T") to build an 88-foot telecommunications tower in aresidential neighborhood, a decision which AT&T later chal-lenged in the United States District Court for the Eastern Dis-trict of Virginia. The district court determined that substantialevidence undergirded the Board's decision, and that theBoard's ruling did not effectively prohibit wireless servicesunder the Act. For the reasons discussed below, we affirm thejudgment of the district court. I.Under the applicable Fairfax County, Virginia ("the NEW CINGULAR WIRELESS v. FAIRFAX COUNTY may be located in residential zoning districts only by specialexception. 3-304(1), 9-001;Code § 15.2-2286(A)(3). Where, as here, a party seeks tobuild a telecommunications facility in a residential neighbor-hood,Board. It is the Board's denial of such an application that isat issue here.3 In addition to a special exception application, a party seek-ing to build a telecommunications tower that is not shown onthe County's Comprehensive Plan must submit a zoningapplication to the County Planning Commission. Code § 15.2-2232. After determining whether the applicationsubstantially conforms to the County's Comprehensive Plan,the Planning Commission makes a recommendation to theBoard, which can overrule the Planning Commission's deci-sion. dation that the Board approve AT&T's zoning application inthis case, the Board did not rule on that matter, and it is notat issue here. To provide a complete picture of the factsunderlying this dispute, however, we note below the findingsof both the Planning Commission and the Board. AT&T, contending that it could only provide limited in-building and in-vehicle wireless services in the County's FortHunt area, submitted a special exception application to the1ginia Zoning Ordinance. 2AT&T's proposed telecommunications facility was to be located, R-3, isa residential neighborhood "established to provide for single familydetached dwellings . . . ; to provide for affordable dwelling unit develop-ments; to allow other selected uses which are compatible with the lowdensity residential character of the district; and otherwise to implement thestated purpose and intent of this Ordinance." Zoning Ordinance § 3-301.32008-MV-031). NEW CINGULAR WIRELESS v. FAIRFAX COUNTY to determine whether its proposal substantially conformed tothe County's Comprehensive Plan. The proposed facility,consisting of a 15-foot tall storage shed and an 88-foot towerdisguised as a tree ("the tree monopole"), was to be erectedbehind a Masonic lodge in an otherwise residential neighbor-hood, approximately one hundred feet from nearby resi-dences. At a hearing on the matter, "[s]everal individuals who livenear the proposed site testified . . . in opposition to the con-struction of the wireless tower." LLC d/b/a AT&T Mobility v. Fairfax Cnty. Bd. of Sup'rs10-cv-283, 2010 WL 4702370, at *1, (E.D. Va. November 10,2010) ("ning Commission found that the proposed facility substan-tially conformed to the Comprehensive Plan, and made arecommendation to the Board for approval of AT&T's appli-cation.Pursuant to Zoning Ordinance 9-006(3), the Board mayapprove a special exception application only when the pro-posed facility is "harmonious with" and would not "adverselyaffect the use . . . of neighboring properties . . . ." Further-more, the County's Policy Plan, which comprises a portion ofthe Comprehensive Plan, states that new telecommunicationsfacilities should be located "on properties that provide thegreatest opportunity to conceal the telecommunications facili-ties," and designed to "provide[ ] the least visual impact onresidential areas. . . ." Pol. Plan Obj. 42(b) & (i), set forth inBr. of Appellant at A10-A11. The Board held a public hearing, and, based on its consid-eration of community opposition and the aforementioned zon-ing regulations, among other things, denied AT&T's specialexception application. In its eleven-page ruling,4filed its complaint in this action. The issue whether the Board compliedwith the Act's requirement that a decision be in writing is not at issue inthis appeal. NEW CINGULAR WIRELESS v. FAIRFAX COUNTY AT&T's proposal did not conform to the County's Compre-hensive Plan or the standards for approval of a special useexception under the zoning ordinance:The Proposed Facility is proposed to be located . . .at a distance of only approximately 100 feet fromtwo of the neighboring residences. . . . [E]xistingvegetation on the Proposed Site is minimal. . . . Onthe northern and western sides of the building, thereare concrete pads. On the eastern end of the Pro-posed Site there are a few trees and a small, grassyarea with dense brush. Otherwise, the remainder ofthe Proposed Site is paved with asphalt. . . . The Pro-posed Facility would . . . extend 38 feet above theclosest tree. There are some existing trees located onadjacent property . . . but those trees average onlyapproximately 40 feet in height. . . . The treemonopole clearly towers above the neighboringtrees. . . . Further, the proposed supplemental vegeta-tion would not reach a sufficient height to minimizethe visual impact of the Proposed Facility. . . . Forty-seven members of the community signed a Petitionopposing the Proposed Site and approximatelytwenty-one community members attended a meetingto discuss their opposition to the Proposed Site.Based on the addresses provided on the Petition andmeeting sign-in sheet, these community memberslive within approximately a one-mile radius of theProposed Site. . . . The Board took this communityopposition into consideration as one of the many fac-tors it considered . . . . JA 160-66 (citations omitted).Following the Board's denial of the special exception appli-cation, AT&T filed a complaint pursuant to 47 U.S.C.§ 332(c)(7)(B)(v), alleging that the Board's decision violatedNEW CINGULAR WIRELESS v. FAIRFAX COUNTY § 332(c)(7)(B)(iii), and that the decision amounted to aneffective prohibition of wireless services in violation of§ 332(c)(7)(B)(i)(II). Ruling on the parties' cross-motions forsummary judgment, the district court held first that:the Fairfax Board reached a reasonable decision[under subsection (B)(iii)] to deny [AT&T's] appli-cation on the basis of a determination that the pro-posed telecommunications facility was not inharmony with the local Zoning Ordinance and theCounty's Comprehensive Plan, that community resi-dents were understandably opposed to the construc-tion of a telecommunications tower in the middle ofa residential area, and that the proposed . . . treepolefacility would be highly visible at the proposed siteand would depress local property values.New Cingulartrict court determined that, "particularly in light of evidenceof the Board's previous approval of numerous zoning applica-tions for telecommunications facilities, including at least threeof [AT&T's] own telecommunications facilities in the vicinityof the proposed site[,]" there was no violation of subsection(B)(i)(II). AT&T filed a timely notice of appeal and we have jurisdic-tion under 28 U.S.C. § 1291. II.The Court reviews de novo an award of summary judg-ment, F.3d 752, 755 (4th Cir. 2010), which is appropriately granted"if the movant shows that there is no genuine dispute as toany material fact and the movant is entitled to judgment as amatter of law." Fed. R. Civ. P. 56(a).NEW CINGULAR WIRELESS v. FAIRFAX COUNTY Subsection (B)(iii) of the Act, commonly termed the "sub-stantial evidence requirement," mandates that "[a]ny decisionby a State or local government or instrumentality thereof todeny a request to place, construct, or modify personal wirelessservice facilities shall be . . . supported by substantial evi-dence. . . ." 47 U.S.C. § 332(c)(7)(B)(iii). We first considerAT&T's contention that the Board's decision failed to complywith the substantial evidence requirement. In reviewing a decision of a zoning board, we are "not freeto substitute [our] judgment" for that of the board. Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjust-mentTo the contrary, we "must uphold a decision that has `substan-tial support in the record as a whole' even if [we] might havedecided differently as an original matter." PCS, Inc. v. City Council of Va. Beach(4th Cir. 1998)("before us, then, is to determine whether the record "containssuch relevant evidence that a reasonable mind might accept asadequate to support the Zoning Board's conclusion." SalemSuch evidence must be "more than a mere scintilla," but canbe "less than a preponderance." Bd. of Sup'rs of Nottoway Cnty.2000)("In determining that the Board's decision satisfied subsec-tion (B)(iii), the district court correctly noted that "a proposedtelecommunications facility's inconsistency with local zoningrequirements can be sufficient to establish substantial evi-dence supporting the denial of a zoning application." Cingularobserved that "evidence regarding" a proposed telecommuni-cation facility's negative "impact on the neighborhood" maysupport a finding of substantial evidence, NEW CINGULAR WIRELESS v. FAIRFAX COUNTY conflicting evidence presented by the wireless provider, suffi-cient evidence may support a board's decision where there isevidence that the proposed facility "would be inconsistentwith" a county's "Comprehensive Plan" or "Zoning Ordi-nance." Sup'rs of Albemarle Cnty.2000). Bd. of Sup'rs2003)("application to build a telecommunications tower found "amplesupport" in the form of "evidence regarding the proposedtower's inconsistencies" with "zoning ordinances and guide-lines"). Here, as the district court recognized, "the Board identifieda number of ways in which [AT&T's] proposed wirelessfacility would not be in harmony with the zoning objectivesand the Comprehensive Plan for that geographical area." Cingular[ing] the least visual impact on residential areas," as requiredby the County's Policy Plan Objective 42(i), the Board notedthat the proposed facility: (1) was to be located 100 feet fromtwo of the neighboring residences; (2) would extend thirty-eight feet above the closest tree; (3) would rise approximatelyforty-eight feet above the average height of the existing treeson the adjacent property; (4) was to be located on a site con-taining concrete pads, with only a few trees and a small,grassy area with dense brush; and (5) called for supplementalvegetation that, when full grown, would not reach a sufficientheight to minimize the tree monopole's visual impact. Likethe district court, we find that these discrete characteristics ofthe proposal, when considered together, are adequate to sup-port the Board's conclusions that the proposed facility doesnot satisfy the County's Policy Plan or the standards forapproval under the zoning ordinance. NEW CINGULAR WIRELESS v. FAIRFAX COUNTY insufficient by itself to satisfy subsection (B)(iii), there is anadditional basis on which we may conclude that the Board'sdecision was supported by substantial evidence in the record.As our precedent reflects, when considering whether therecord "contains such relevant evidence that a reasonablemind might accept as adequate to support the Zoning Board'sconclusion," tion marks omitted), we have explained that "a reasonablemind" should be understood as "the mind of a reasonable leg-islator." reasonable-legislator standard, "[i]t is not only proper buteven expected that a legislature and its members will considerthe views of their constituents to be particularly compellingforms of evidence." "[i]f a legislative body denies a permit based on thereasonably-founded concerns of the community, thenundoubtedly there is substantial evidence to support thebody's decision."quotation marks and emphasis omitted). The record indicates that the Board considered communityopposition that "[f]acilities of this type do not belong in a resi-dential community such as ours," JA 528, and would "disruptthe neighborhood and the country-like setting." JA 788 (inter-nal quotation marks and alterations omitted). Given the designof the proposed facility and its placement in the midst of aresidential neighborhood, we agree with the district court thatthose community concerns were not irrational. Additionally,board members observed at the hearing that "there [are] a lotof houses in close proximity" to the proposed site, and that thesite "is in the middle of a residential neighborhood with veryclose neighbors . . . that would see [the monopole] all the5would constitute substantial evidence, the "objectively unreasonable"opposition of an "irrational" few cannot. 695. NEW CINGULAR WIRELESS v. FAIRFAX COUNTY community concerns, we have little difficulty concluding thatthe Board's decision was supported by substantial evidence.For these reasons, we find the Board's denial of AT&T'sapplication had substantial support in the record as a wholeand complied with the substantial evidence requirement ofsubsection (B)(iii) of the Act.B.We next consider whether the Board's decision compliedwith subsection (B)(i)(II) of the Act, which forbids decisionson tower placement that have the effect of prohibiting a car-rier from providing personal wireless services to the area. Werecently decided a similar question in LLC v. Fairfax County Board of Supervisors(4th Cir. Mar. 1, 2012), in which we recognized thatthe language of this subsection does not encompassthe ordinary situation in which a local governingbody's decision merely limits the level of wirelessservices available because, as we have explained, theAct cannot guarantee 100 percent coverage.Slip op. at 13. Moreover, we stated thatwe emphasize that a plaintiff's burden to prove aviolation of subsection (B)(i)(II) is substantial and isparticularly heavy when, as in this case, the plaintiffalready provides some level of wireless service tothe area.Id.a plaintiff must meet one of two standards to prevailunder subsection (B)(i)(II). The plaintiff must estab-lish: 1) that a local governing body has a general pol-NEW CINGULAR WIRELESS v. FAIRFAX COUNTY wireless facility applications, F.3d at 87; that the denial of an application for one particularsite is "tantamount" to a general prohibition of ser-vice, In asserting a claim under this second theory, asT-Mobile does here, a plaintiff must show a legallycognizable deficit in coverage amounting to aneffective absence of coverage, and that it lacks rea-sonable alternative sites to provide coverage. at 87-88. We also have stated that the plaintiffshould be able to demonstrate that further reasonableefforts to gain approval for alternative facilitieswould be "fruitless." F.3d [at] 269; Id.assume under vided evidence establishing a prima facie case of an effectiveabsence of coverage, it simply failed to provide evidence toestablish "a lack of reasonable alternative sites." In seeking to present evidence of a lack of reasonable alter-natives, AT&T contends that it "presented evidence that it hadexamined numerous other locations, but they were unusableor unavailable."tions, Fort Hunt National Park, was in AT&T's view "un-available" because previous attempts by Verizon, a competingcarrier, to locate two wireless facilities in nearby nationalparks indicated that park officials "were `loathe' [sic] to6most recent order, sions of Section 332(c)(7)(B)Appellant at 40-42. We considered and rejected that argument in Mobile NEW CINGULAR WIRELESS v. FAIRFAX COUNTY can take years to process with no certainty of outcome." see alsoloathe [sic] to allow such facilities and applications can takeyears to process with no certainty of outcome."). The plaintiff in ment, contending that alternative sites were unavailable as apractical matter because a national "park's policy prohibit[ed]the placement of poles in the park until other alternatives areeliminated." Slip op. at 15. The Court swiftly discarded thisassertion, finding "the difficulties presented in meeting suchrestrictions are insufficient to establish that a provider lacksreasonable alternatives for the provision of its services." 15.Here, AT&T provides even less evidence than did T-Mobile. As discussed above, the entirety of AT&T's argu-ment on this point is its bare assertion, based on nothing butthe speculation of a consultant, that Fort Hunt National Park"was not a feasible option because park officials were `loathe'[sic] to locate wireless facilities on park property, and applica-tions can take years to process with no certainty of outcome."Br. for Appellant at 45; Reply Br. for Appellant at 26. As weconcluded in of denying applications because other sites have not beeneliminated as possibilities constitutes insufficient evidence toprove a § 332(c)(7)(B)(i)(II) claim, all the more so are thewholly speculative assertions provided here. For even if parkofficials might have been "loath" to approve a proposal, aplaintiff's mere reference to a competitor's prior experienceseeking to locate undescribed and unknown facilities in differ-ent parks, without more, is insufficient evidence on which toestablish a lack of reasonable alternative sites. We thus agree with the district court's conclusion thatbecause AT&T "has yet to even submit . . . an application toFort Hunt National Park authorities," AT&T's argument "thatNEW CINGULAR WIRELESS v. FAIRFAX COUNTY site is unpersuasive." *9. Moreover, where a plaintiff asserts a claim that a denial ofan application is tantamount to a general prohibition of ser-vice, we have also required that plaintiff "to demonstrate thatfurther reasonable efforts to gain approval for alternativefacilities would be fruitless." quotation and citation omitted). A plaintiff can satisfy thisburden only where further efforts would be "so likely to befruitless that it is a waste of time to try." 343 F.3d at 268; Town of Amherst, N.H. v. Omnipoint Commc'ns Enters., Inc.173 F.3d 9, 14 (1st Cir. 1999)). Although AT&T argues thatapplications to place a telecommunications facility on anational park "outcome," such an allegation is purely speculative and with-out any factual basis in the record. Thus, AT&T has not estab-lished that it would be "Based on the failure of proof by AT&T, the district courtcorrectly granted summary judgment to the Board on AT&T'sclaim that the Board's denial of its application violated sub-section B(i)(II) of the Act.III.For the foregoing reasons, the judgment of the district courtis AFFIRMEDDAVIS, Circuit Judge, concurring:I concur fully in Judge Agee's fine opinion for the panel.As Judge Agee ably explains, substantial evidence supportsthe Board's decision, and AT&T has failed to provide moreNEW CINGULAR WIRELESS v. FAIRFAX COUNTY finder could conclude that further efforts to secure approvalfor a wireless facility in Fort Hunt National Park are "so likelyto be fruitless that it is a waste of time to try." Maj. Op. at 13(quoting County Board of Supervisors2003)). That is, I agree that AT&T's evidence on the "lack ofreasonable alternative sites" is significantly weaker than wasT-Mobile's evidence on alternative sites in east, LLC v. Fairfax County Board of Supervisors1060, slip op. at 10, (4th Cir. Mar. 1, 2012), which the major-ity in that case held (over my dissent) to be insufficient torequire a trial on the issue. to note that neither in this case nor in yet determined "whether a particular level of coverage in aparticular geographic area constitutes an `effective absence ofcoverage.'" remains for resolution in a future case. NEW CINGULAR WIRELESS v. FAIRFAX COUNTY