Tillman Infrastructure LLC v. The Bd. of Supervisors of Culpeper Cnty., Va.
| Decision Date | 11 May 2022 |
| Docket Number | 3:21-cv-40 |
| Parties | TILLMAN INFRASTUCTURE LLC, Plaintiff, v. THE BOARD OF SUPERVISORS OF CULPEPER COUNTY, VIRGINIA, et al., Defendants. |
| Court | U.S. District Court — Western District of Virginia |
NORMANK. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Culpeper County, Virginia and the Board of Supervisors of Culpeper County's (Defendants') motion to dismiss, Dkt. 6.
Plaintiff Tillman Infrastructure LLC is a telecommunications company that invests in and manages cell towers and other telecommunications infrastructure. Dkt. 25 (Amended Complaint) at ¶ 2.[1] One of its clients is AT&T. Id. In March 2021, Tillman and AT&T submitted a use permit application to Culpeper County proposing to construct a new telecommunications tower in Rapidan, VA. Id. at ¶ 14. The application noted that “the proposed site will allow wireless carriers to improve the quality of services for their customers in Culpeper County and the City of Rapidan.” Id. Specifically, the application sought to build a tower “designed to accommodate up the four (4) carriers” and that would “be designed as a 195 ft. self-support structure” with an additional 4 ft. lightning rod. Id.; see also Ex. 1 to Dkt. 25 (the application).
Pursuant to the application requirements, Tillman noted that the area was currently served by a tower operated by SBA Towers, which was then “deemed by the anchor carrier, AT&T, as unsuitable due to fees, costs and contractual provisions.” Id. at ¶ 17. In addition, the application noted that “[t]he current rent charged by SBA to co-locate on the SBA tower is over two times what Tillman will charge AT&T to co-locate on the Tillman tower.” Id. at ¶ 19. Tillman contended that SBA was “using its monopoly to extract unreasonable compensation from AT&T.” Id. at ¶ 21. The application also contended that AT&T would have an easier time developing upgrades to Tillman's tower as opposed to SBA's, which “requires AT&T to apply to SBA every time it seeks to improve wireless facilities.” Id. at ¶ 24.
The County hired a private contractor, CTA Consultants, to provide a technical review of Tillman's use permit application. Id. at ¶ 26. CTA Consultants determined that Tillman's use permit application complied with “the County's application process, tower ordinances, and other applicable codes for telecommunications support structures.” Id. at ¶ 27; see also Ex. 2 to Dkt. 25 (the CTA report). Tillman's application was also reviewed by the County's Planning & Zoning Department staff which resulted in a recommendation “that the Planning Commission find[] the proposal by the applicant Tillman Infrastructure to build a 199 foot telecommunications tower facility on Tax Map/Parcel 60/19, to be substantially in accord with the provisions of the adopted Comprehensive Plan goals as mentioned specifically in chapter 7.” Id. at ¶ 28.
At the conclusion of a public hearing on the matter, the Planning Commission determined that Tillman's application was (1) in substantial accord with the County's Comprehensive Plan and (2) in conformance in Article 17, 17-6 of the Zoning Ordinance, and (3) recommended by a vote of nine to zero that the Board of Supervisors approve the proposed use permit with the conditions recommended by CTA Consultants. Id. at ¶ 30; see also Ex. 4 to Dkt. 25 (); Ex. 5 to Dkt. 25 (transcript from Planning Commission Hearing).
The County Board of Supervisors considered Tillman's application at a public hearing on July 6, 2021. Id. at ¶ 31. The only speaker in opposition was SBA. Id. One of the supervisors noted that Id. Another supervisor suggested that AT&T continue to try to negotiate its rates with SBA. Id.
The Board of Supervisors then took the matter under advisement until another public hearing on October 5, 2021. Id. at ¶ 33. Tillman's representative advised the Board that SBA and AT&T had been unable to negotiate an acceptable rental rate and provided the Board with a letter from AT&T chronicling AT&T's efforts to negotiate with SBA. Id. For what Tillman alleges are unclear reasons, the Board voted unanimously to deny the application. Id. at ¶ 37.
Tillman filed the original Complaint in this case, Dkt. 1, in November 2021 and Defendants' motion to dismiss, Dkt. 6, followed. In May 2022, Tillman filed the Amended Complaint, Dkt. 25, dropping one count and from the original Complaint. The parties stipulated to having the prior motion to dismiss, Dkt. 6, apply to the Amended Complaint. Dkt. 22, 23.
The five-count Amended Complaint alleges violations of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7) and Virginia statutes relating to wireless communications infrastructure, Va. Code §§ 15.2-2316.3-2316.5. Dkt. 25 at ¶¶ 38-74.
Defendants' motion to dismiss attacks each of the Amended Complaint's five counts. See Dkt. 6.
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of a complaint to determine whether a plaintiff has properly stated a claim. The complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), with all its allegations taken as true and all reasonable inferences drawn in the plaintiff's favor, King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). A motion to dismiss “does not, however, resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Id. at 214.
Although the complaint “does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A court need not “accept the legal conclusions drawn from the facts” or “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (quotation marks omitted). This is not to say Rule 12(b)(6) requires “heightened fact pleading of specifics, ” instead the plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ().
A. Count One: Violation of 47 U.S.C. § 332(c)(7)(B)(iii)
In Count One, Tillman alleges that “the Board's denial of Tillman's application for a conditional use permit violates the Telecommunications Act of 1996 because it [was] not supported by substantial evidence in a written record.” Dkt. 1 at ¶ 39; see 47 U.S.C. § 332(c)(7)(B)(iii). Ordinarily, courts apply the substantial evidence standard at summary judgment, not at the motion to dismiss stage. See, e.g., T-Mobile NE. LLC v. City Council of Newport News, 674 F.3d 380, 384 (4th Cir. 2012); Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009). Defendants appear to want the Court to apply the substantial evidence standard here on the motion to dismiss (see Dkt. 7 at 7-9) but have not offered any cases in which a court has performed the substantial evidence analysis at the motion to dismiss stage, and the Court cannot find any.
Tillman, on the other hand, states that the standard for the Court to apply to Count I at the motion to dismiss stage is whether “the Complaint alleges facts sufficient to establish that the County's denial was not based on substantial evidence, ” (Dkt. 12 at 3), although Tillman has also not provided any cases where a court has considered a claim under 47 U.S.C. § 332(c)(7)(B)(iii) at the motion to dismiss stage.
In line with the usual trend of courts applying the substantial evidence standard at summary judgment, not on a motion to dismiss, the Court will reserve the ultimate question of whether the County's decision was supported by substantial evidence for summary judgment. Instead, keeping in mind the standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court will look to whether Tillman has stated sufficient facts to make out a plausible claim of relief under 47 U.S.C. § 332(c)(7)(B)(iii), with all factual allegations taken as true and all reasonable inferences drawn in Tillman's favor. See Twombly, 550 U.S. at 570; King, 825 F.3d at 212.
The Court holds that Tillman has stated sufficient facts to make out a plausible claim under Count One. The Amended Complaint alleges these pertinent facts, among others: that the Planning Commission determined that the proposed tower was in accord with the County's Comprehensive Plan (Dkt. 25 at ¶ 28-29); that, while the Board was charged with considering the reasonableness of rates in determining whether to grant Tillman's application, the Board's ultimate decision was to not get involved in the negotiations between AT&T and SBA (id. at ¶¶ 31, 36, 44); and that only one individual aside from SBA's representative spoke out against the proposed tower (id. at ¶ 29). These facts give rise to a plausible claim that the Board's denial was not based on substantial evidence. The substantial evidence standard is “necessarily a factintensive inquiry.” T-Mobile Northeast, 674 F.3d at 388 (discussing how the Fourth Circuit's cases applying the substantial evidence standard under Section 332(c)(7)(B)(iii) have come out in different directions based on the...
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