T-Mobile Northeast LLC v. City Council of Newport News, Virginia, 11–1293.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 55 Communications Reg. (P&F) 868,674 F.3d 380
• Docket Number: No. 11–1293.,11–1293.
• Parties: T–MOBILE NORTHEAST LLC, Plaintiff–Appellee, v. The CITY COUNCIL OF the CITY OF NEWPORT NEWS, VIRGINIA; City of Newport News, Virginia, Defendants–Appellants.
• Decision Date: 26 March 2012

55 Communications Reg. (P&F) 868
674 F.3d 380

T–MOBILE NORTHEAST LLC, Plaintiff–Appellee,
v.
The CITY COUNCIL OF the CITY OF NEWPORT NEWS, VIRGINIA; City of Newport News, Virginia, Defendants–Appellants.

No. 11–1293.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 6, 2011.Decided: March 26, 2012.

[674 F.3d 382]

Darlene P. Bradberry, Office of the City Attorney, Newport News, Virginia, for Appellants. Thomas Scott Thompson, Davis, Wright & Tremaine, LLP, Washington, D.C., for Appellee.

Before KING and DIAZ, Circuit Judges, and RICHARD M. GERGEL, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge KING and Judge GERGEL joined.

OPINION DIAZ, Circuit Judge:

Following the denial of its application for a conditional use permit to construct a wireless communication tower at an elementary school, T–Mobile Northeast LLC filed suit in federal court, alleging that the denial violated the Telecommunications Act of 1996. The district court agreed and issued an injunction directing that T–Mobile's application be granted. Because we, too, conclude that the denial is not supported by substantial evidence as required by the Act, we affirm.

I. A.

Based on complaints about a gap in coverage in the Denbigh area of Newport News, Virginia, T–Mobile identified R.O. Nelson Elementary School (“Nelson Elementary”) as a target location for a new wireless communication tower. T–Mobile subsequently entered into an agreement with the Newport News School Board to lease a parcel of land at the school for construction and operation of the tower. Under the local zoning ordinance, however, construction of the tower at the school required the issuance of a conditional use permit. Thus, in April 2008, T–Mobile submitted an application for the permit to the Newport News Planning Department.

At the time, although already located at local high schools, no communication towers

[674 F.3d 383]

were located at local elementary schools. Accordingly, the Planning Department and the School Board conducted a joint study into the appropriateness of building towers at elementary schools. While the study was ongoing, T–Mobile scheduled a meeting to “explain [its application] in more detail and to respond to any questions.” J.A. 265. Although 150 households near Nelson Elementary were notified of the meeting, fewer than ten residents attended. The questions at the meeting focused on the visual impact of the tower and its potential radiation effects.

In an August 2009 report (“Report”), the Planning Department noted that “[e]lementary school sites are desirable to mobile phone service providers for building cell phone towers because the sites usually are embedded within residential neighborhoods.” Id. 240. The Report also recommended Nelson Elementary as an “acceptable” site for a tower, finding that (1) the school had more land than needed for recreational areas, (2) a tower “should not unduly impact the adjacent residences,” (3) the zoning of the surrounding areas did not permit a tower and no towers were in the area, (4) although single-family residences were nearby, “an extensive wooded buffer will remain that will reduce [the tower's] visibility from adjoining properties,” and (5) a tower “will have minimal impact on the surrounding properties and neighborhood if a stealth design is used.” Id. 246.

Subsequently, the City Council (the “City”) held a work session to discuss the Report. Several councilmembers expressed concerns about the location proposed for the tower. Id. 258 (voicing concern that “communication towers posed a health risk to children”); id. 260 (arguing that “communications towers were dangerous to a child's developing mind”); id. (noting that “personnel who monitored [the] towers” could pose a safety risk to students). Ultimately, the City agreed to consider Nelson Elementary as a potential site, but decided to study alternative locations as well.

Thereafter, following discussions between T–Mobile and the Planning Department, T–Mobile submitted a new, slightly-modified permit application. Following a public hearing, the Newport News Planning Commission unanimously recommended that the City approve T–Mobile's application.

The City held a separate public hearing on T–Mobile's application where nine citizens spoke—six in favor of the application and three in opposition. Those in favor emphasized the need for better cell phone coverage and the economic benefit the school board would receive by leasing the land to T–Mobile. The supporters were all affiliated with T–Mobile, either as customers or employees. T–Mobile also submitted a petition with the names of fifty-one customers who supported the tower.

Lisa Murphy, counsel for T–Mobile, explained how increased cell phone use necessitated constructing towers in residential areas. She addressed emissions concerns, noting that the emissions were akin to those from a two-way radio and stating that the tower was “fully compliant with all of the federal requirements.” Id. 172. Additionally, the record before the City included photographs from a balloon test, designed to demonstrate the visual impact of the tower. The City also had before it a memorandum from the county assessor in neighboring York County, asserting that he was “not aware of any instances where the location of a cellular communications tower has had a negative impact” on property values in York County and that he received no contrary information from “several other adjacent localities.” Id. 143.

[674 F.3d 384]

Three local residents spoke in opposition to the tower. Rachel Weaver, a neighborhood resident and mother of a kindergartener at Nelson Elementary, expressed concern about “radiation exposure [ ] to the children,” id. 154, and the property values of nearby homes, id. 156. Michael Charnock, another local resident, argued that “the decrease in value of our homes, much less the repercussions of what could happen to our children,” counseled against constructing the tower. Id. 161.¹ Cliff Manuel, the minister of a church neighboring the school, also opposed the tower, arguing that “the last pristine possible resource that we have are the children of Newport News.” Id. 164. Additionally, an email from another resident, Dennis Crawford, was before the City. In it, he raised concerns about the tower's health effects on children and its impact on the residential area, and questioned “[h]ow many more eyesores do we want to locate in Denbigh?” Id. 111.

After closing the hearing, the City voted 4–3 without explanation to deny T–Mobile's application.

B.

On July 8, 2010, T–Mobile filed suit against the City of Newport News and the City Council in the Eastern District of Virginia, alleging violations of section 704 of the Telecommunications Act of 1996. T–Mobile's complaint alleged that the denial was (1) not supported by substantial evidence, in violation of 47 U.S.C. § 332(c)(7)(B)(iii) and (2) unlawfully based on concerns of potential health effects from emissions, in violation of 47 U.S.C. § 332(c)(7)(B)(iv).²

After considering the parties' cross-motions for summary judgment, the magistrate judge issued his Report and Recommendation, finding that the City's denial was not based on substantial evidence. The magistrate judge recommended granting summary judgment to T–Mobile on this claim, issuing an injunction ordering the City to approve T–Mobile's application, and denying the City's motion for summary judgment. Because the magistrate judge found that “after removing any discussion of health effects from the record,” the City's denial is not based on substantial evidence, he determined that he “need not” decide the second claim.³ Id. 445.

Although both parties filed objections to the magistrate judge's Report and Recommendation, the district court adopted it in full.⁴ Id. 515. The City timely appealed.

II.

We review a district court's decision to grant summary judgment de novo,

[674 F.3d 385]

“applying the same legal standards as the district court,” and “viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.” Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir.2009) (citing Nader v. Blair, 549 F.3d 953, 958 (4th Cir.2008) and Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 603 (4th Cir.2002)) (alteration omitted). Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

III.

Congress enacted the Telecommunications Act of 1996 “to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” Pub.L. No. 104–104, 110 Stat. 56 (1996). The Act “sought to limit the ability of state and local governments to frustrate the [ ] national purpose of facilitating the growth of wireless telecommunications, [but] also intended to preserve state and local control over the siting of towers and other facilities that provide wireless services.” 360° Commc'ns Co. of Charlottesville v. Bd. of Sup'rs of Albemarle County, 211 F.3d 79, 86 (4th Cir.2000). To strike this balance, the Act preserves the power of the local zoning authority “over decisions regarding the placement, construction, and modification of personal wireless service facilities,” while placing certain limits on that authority. 47 U.S.C. § 332(c)(7)(A).

Two of those limitations are at issue in this case. First, the Act requires that “[a]ny 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.” Id. § 332(c)(7)(B)(iii).⁵ Second, the Act forbids the regulation of wireless...