360oCommunications v. Bd. of Supervisors

• Citation: 211 F.3d 79
• Decision Date: 15 March 2000
• Docket Number: CA-98-99-C,No. 99-1897,No. 99-1816,99-1816,99-1897
• Parties: Page 79 211 F.3d 79 (4th Cir. 2000) 360 o COMMUNICATIONS COMPANY OF CHARLOTTESVILLE, Plaintiff-Appellee, v. THE BOARD OF SUPERVISORS OF ALBEMARLE COUNTY, Defendant-Appellant. 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. 360 o 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 OVERNMENT ATTORNEYS SOCIATION OF VIRGINIA, INCORPORATED; VIRGINIA ASSOCIATION OF COUNTIES; VIRGINIA MUNICIPAL LEAGUE; APPALACHIAN TRAIL CONFERENCE, Amici Curiae. (). UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 79

211 F.3d 79 (4th Cir. 2000)

360^o COMMUNICATIONS COMPANY OF CHARLOTTESVILLE, Plaintiff-Appellee v THE BOARD OF SUPERVISORS OF ALBEMARLE COUNTY, Defendant-Appellant.

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.

360^o 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 OVERNMENT ATTORNEYS SOCIATION OF VIRGINIA, INCORPORATED; VIRGINIA ASSOCIATION OF COUNTIES; VIRGINIA MUNICIPAL LEAGUE; APPALACHIAN TRAIL CONFERENCE, Amici Curiae.

No. 99-1816 No. 99-1897 (CA-98-99-C).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: January 24, 2000.

Decided: March 15, 2000.

Appeals from the United States District Court for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Larry Wade Davis, OFFICE OF THE COUNTY ATTORNEY, Charlottesville, Virginia, for Appellant. Melvin Earl Gibson, Jr., TREMBLAY & SMITH, L.L.P., Charlottesville, Virginia, for Appellee. ON BRIEF: Gustav Gregory Kamptner, OFFICE OF THE COUNTY ATTORNEY, Charlottesville, Virginia, for Appellant. Patricia D. McGraw, TREMBLAY & SMITH, L.L.P., Charlottesville, Virginia, for Appellee. George R. St. John, ST. JOHN, BOWLING & LAWRENCE, L.L.P., Charlottesville, Virginia, for Amici Curiae Dudley, et al. Kathleen Rogers, PIEDMONT ENVIRONMENTAL COUNCIL, Warrenton, Virginia, for Amicus Curiae Council, et al. William Malone, John L. Knight, Henrico County Attorney, Sterling Rives, Hanover County Attorney, C. Flippo Hicks, Mark K. Flynn, MILLER & VAN EATON, P.L.L.C., Washington, D.C., for Amici Curiae Local Government Attorneys, et al. Andrew T. Hyman, Harpers Ferry, West Virginia; Charles W. Sloan, SLOAN & SWEDISH, Vienna, Virginia, for Amicus Curiae Appalachian Trail Conference.

Before NIEMEYER, Circuit Judge, Deborah K. CHASANOW, United States District Judge for the District of Maryland, sitting by designation, and Andre M. 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^o Communications, Inc., directing the Albemarle County (Virginia) Board of Supervisors to issue a special-use permit to 360^o 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 § 704(a)(7)(B)(i)(II) of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(i)(II). For the reasons that follow, we reverse.

I

360^o 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^o 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^o Communications refined its application to request approval of only one 100-foot tower on the ridge-line 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 o 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 Albemarle County Planning Commission's meeting on June 2, 1998, during which 13 citizens spoke in opposition to the tower, the planning staff recommended that the Commission deny 360^o Communications' application. The staff noted that the proposed tower was inconsistent with Albemarle County's Comprehensive Plan for the development of the County. It also noted that the proposed tower would violate two provisions of the County's zoning ordinance. Finally, the staff noted that because 360^o Communications had not demonstrated the lack of other feasible locations for the tower, denial of the application would not have the effect of prohibiting wireless service generally. The Planning Commission unanimously recommended denial of the application to the County Board of Supervisors and scheduled a public hearing before the Board of Supervisors for August 12, 1998.

At the hearing before the Board of Supervisors, 360 o 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^o 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^o Communications' witnesses discussed alternatives to the single tower, including the use of six 100-foot towers at sites below the mountain ridge-line 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 ridge-lines 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 ridge-line; and (4) the tower was detrimental to the creation of a "convenient, attractive and harmonious community." The Board concluded that alternatives were available and that its decision would not prohibit wireless communication service in Albemarle County. It noted that since 1990, it had granted 18 permits for wireless communications towers and denied only 4.

360^o Communications commenced this action under § 704(a)(7) (B)(v) of the Telecommunications Act, alleging that the Board of Supervisors' decision was not supported by substantial evidence, in violation of § 704(a)(7)(B)(iii) of the Act, and that the decision had the effect of prohibiting the provision of personal wireless services, in violation of § 704(a)(7)(B)(i)(II). On cross-motions for summary judgment, the district court concluded that substantial evidence supported the Board of Supervisors' denial of the application but that the denial of the application nevertheless had the effect of prohibiting the provision of wireless services, in violation...