AT & T Wireless PCS, Inc. v. City Council of City of Virginia Beach

• Decision Date: 01 September 1998
• Docket Number: 97-2513,Nos. 97-2389,s. 97-2389
• Citation: 155 F.3d 423
• Parties: 13 Communications Reg. (P&F) 425 AT & T WIRELESS PCS, INCORPORATED; PrimeCo Personal Communications, L.P.; Lynnhaven United Methodist Church, Plaintiffs-Appellees, v. CITY COUNCIL OF the CITY OF VIRGINIA BEACH, Defendant-Appellant. Virginia Association of Counties, Amicus Curiae. AT & T WIRELESS PCS, INCORPORATED; PrimeCo Personal Communications, L.P.; Lynnhaven United Methodist Church, Plaintiffs-Appellants, v. CITY COUNCIL OF the CITY OF VIRGINIA BEACH, Defendant-Appellee. Virginia Association of Counties, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 423

155 F.3d 423

13 Communications Reg. (P&F) 425

AT & T WIRELESS PCS, INCORPORATED; PrimeCo Personal

Communications, L.P.; Lynnhaven United Methodist

Church, Plaintiffs-Appellees, v. CITY COUNCIL OF the CITY OF VIRGINIA BEACH, Defendant-Appellant.

Virginia Association of Counties, Amicus Curiae.

AT & T WIRELESS PCS, INCORPORATED; PrimeCo Personal

Communications, L.P.; Lynnhaven United Methodist

Church, Plaintiffs-Appellants, v. CITY COUNCIL OF the CITY OF VIRGINIA BEACH, Defendant-Appellee.

Virginia Association of Counties, Amicus Curiae.

Nos. 97-2389, 97-2513.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1998.

Decided Sept. 1, 1998.

ARGUED: Lawrence Steven Emmert, Senior Assistant City Attorney, Office of City Attorney, Virginia Beach, VA, for Appellant. F. Bradford Stillman, McGuire, Woods, Battle & Boothe, Norfolk, VA, for Appellees. ON BRIEF: William M. Macali, Deputy City Attorney, Office of City Attorney, Virginia Beach, VA; William R. Malone, Miller & Van Eaton, P.L.L.C., Washington, DC, for Appellant. William G. Broaddus, Robert W. McFarland, Douglas E. Miller, McGuire, Woods, Battle & Boothe, Norfolk, VA; R. Edward Bourdon, Jr., Sykes, Carnes, Bourdon & Ahern, P.C., Virginia Beach, VA, for Appellees. Howard W. Dobbins, Elizabeth P. Mason, Williams, Mullen, Christian & Dobbins, Richmond, VA, for Amicus Curiae.

Before WILKINS and LUTTIG, Circuit Judges, and FABER, United States District Judge for the Southern District of West Virginia, sitting by designation.

Reversed in part and affirmed in part by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINS and Judge FABER joined.

OPINION

LUTTIG, Circuit Judge:

This case arises under the federal Telecommunications Act of 1996. The district court ordered appellant, the City Council of Virginia Beach, Virginia, to approve appellees' application to erect communications towers in a residential area of Virginia Beach, holding that the City Council violated section 704(c)(7)(B) of the Telecommunications Act by denying the application. We hold that the City Council did not violate section 704(c)(7)(B), and therefore we reverse the judgment of the district court.

I.

On March 25, 1997, the City Council of Virginia Beach ("City Council") voted unanimously to deny the application of appellees AT & T Wireless PCS ("AT & T") and PrimeCo Personal Communications ("PrimeCo"), and others, for a conditional use permit to erect two 135-foot communications towers at the Lynnhaven Methodist Church ("Church") in the Little Neck Peninsula area of Virginia Beach. Little Neck is a heavily wooded residential area with no significant commercial development, no commercial antenna towers, and no above-ground power lines. Little Neck is zoned R-20 Residential under the Virginia Beach Zoning Ordinance, a classification that aims to "provide for harmonious neighborhoods located as to create compatibility and to provide for certain other necessary and related uses within residential communities but limited so as to maintain neighborhood compatibility."

The City Council's vote concluded a months-long effort by appellees to secure a location for towers in Little Neck. AT & T and PrimeCo both offer digital wireless personal communications services in the Virginia Beach area. Digital service is considered an advance over analog service. Like analog service, it relies on overlapping "cells," each centered on a communications tower. However, because digital signals are weaker than analog signals, and because of the thick tree cover in Little Neck, AT & T and PrimeCo found that their Virginia Beach service had a "hole" in portions of Little Neck. Aided by City staff, they investigated several possible tower sites in Little Neck and concluded that the Church's property was the most desirable. They therefore entered into leases with the Church allowing them, in exchange for approximately $60,000 annual rent, to construct, maintain, and operate two 135-foot communications towers on the Church's property. Besides carrying digital signals, the towers were also to provide analog signals for GTE Mobile Net and 360o Communications (not parties to this case), who also sought to enhance their service in Little Neck. Each tower would serve one analog and one digital provider.

Virginia Beach's Zoning Ordinance required the Church to secure a conditional use permit to allow AT & T and PrimeCo to build their towers. Accordingly, the Church filed an application with the City Planning Department, which, after making some modifications to appellees' proposal, recommended approval to the City Planning Commission. The Planning Commission then held a public hearing on January 8, 1997. Representatives of the companies and of the Church advocated approving the application, as did some commissioners and city officials, but numerous area residents spoke against approval, largely on the grounds that such a commercial use of the Church property was improper in a residential area and that the towers, even with various aesthetic modifications made by the companies, would be eyesores. One resident submitted a petition in opposition, with ninety signatures that he had collected in the day and a half prior to the hearing. At the conclusion of the hearing, the Planning Commission voted unanimously, with one abstention, to recommend that the City Council approve the application.

The City Council considered the application at its meeting on March 25, 1997. Having been provided with copies of the Planning Department's report, the transcript of the Planning Commission hearing, and the various application materials, the City Council also heard further testimony on the matter. Again, representatives of the companies and of the Church explained and supported the application; numerous area residents spoke, all of those not affiliated with the Church being opposed. One resident, Mr. Wayne Shank, presented petitions with over seven hundred signatures in opposition. The Council also appears to have had before it one shorter petition supporting the application and various letters to councilmen on the matter, both in support and in opposition. The only councilman to speak on the merits, Councilman William Harrison (who represents Little Neck), voiced his opposition in light of the testimony of area residents who did not think that improved service was worth the burden of having the towers looming over them.

The Council ultimately voted unanimously to deny the application, a decision recorded both in a two-page summary of the minutes--describing the application, listing the names and views of all who testified at the hearing, and recording the votes of each councilman--and in a letter from the Planning Commission to the City Council describing the application and stamped with the word "DENIED" and the date of the City Council's vote. Consistent with its usual practice, the Council did not generate written findings of fact concerning its vote, nor did it produce a written explanation of the basis for its vote. In response to the denial, AT & T, PrimeCo, and the Church initiated this suit in federal district court in the Eastern District of Virginia. For the reasons we discuss below, the district court ordered the City Council to approve the application.

II.

Section 704(c)(7) of the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56, codified at 47 U.S.C. § 332(c)(7), entitled "Preservation of local zoning authority," provides in relevant part as follows:

(A) General Authority

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof--

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

...

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

Section (B)(v) ¹ creates a cause of action for suits such as this one, if filed within thirty days of a State or local government's final action. AT & T and PrimeCo contend that the City Council, in denying the request for a conditional use permit, violated both subsections of (B)(i) as well as (B)(iii). The district court, ruling on cross-motions for summary judgment, held that the City Council (1) had unreasonably discriminated against appellees, in violation of subsection (B)(i)(I), (2) had not violated subsection (B)(i)(II)'s bar on prohibiting service, and (3) had failed to provide a "decision ... in writing and supported by substantial evidence contained in a written record" in violation of section (B)(iii). 979 F.Supp. 416, 426-30 (E.D.Va.1997). The court then ordered the City Council to approve the application. ² Id. at 431.

For the reasons that follow, we reverse the district court's first holding, affirm the second, and reverse the third. There being no remaining material issues of fact, we order summary judgment in favor of the City Council on all three claims.

III.

The parties disagree vehemently as to the meaning of subsection (B)(i)(I)'s prohibition on "unreasonably discriminat[ing] among providers of functionally equivalent services." Appellant City Council would have us read into this language the traditional lenient standard for reviewing local zoning decisions under the Due Process and Equal Protection Clauses. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47...