T–mobile Ne. Llc v. the Fairfax County Bd. of Supervisors

• Decision Date: 17 December 2010
• Docket Number: Case No. 1:10–cv–117 (GBL/JFA).
• Citation: 759 F.Supp.2d 756
• Court: U.S. District Court — Eastern District of Virginia
• Parties: T–MOBILE NORTHEAST LLC, Plaintiff,v.The FAIRFAX COUNTY BOARD OF SUPERVISORS, Defendant.

759 F.Supp.2d 756

T–MOBILE NORTHEAST LLC, Plaintiff,

v.The FAIRFAX COUNTY BOARD OF SUPERVISORS, Defendant.

Case No. 1:10–cv–117 (GBL/JFA).

United States District Court, E.D. Virginia,Alexandria Division.

Dec. 17, 2010.

Daniel Peter Reing, Davis Wright Tremaine LLP, Washington, DC, for Plaintiff.Elizabeth Doyle Teare, Fairfax, VA, for Defendant.

MEMORANDUM OPINIONGERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Plaintiff T–Mobile Northeast LLC's (“T–Mobile”) Motion for Summary Judgment and Defendant Fairfax County Board of Supervisors' (the “Board”) Motion for Summary Judgment. This case is an appeal of the Board's denial of T–Mobile's two land use applications, by which T–Mobile was seeking permission to install three antenna panels on a 10–foot extension of an existing 100–foot cell phone transmission pole. The issue before the Court is whether the Board's denial of T–Mobile's applications violated the Telecommunications Act. The Court concludes that the Board's denial of T–Mobile's applications does not violate the Telecommunications Act because (1) the Board's decision was supported by substantial evidence in the record, (2) the Board's decision did not unreasonably discriminate against providers of functionally equivalent services, and (3) the Board's decision did not prohibit, or have the effect of prohibiting, personal wireless services. Accordingly, the Court grants the Board's Motion for Summary Judgment and denies T–Mobile's Motion for Summary Judgment.

I. Background

T–Mobile is a Delaware limited liability company registered to do business in the Commonwealth of Virginia. (Compl. ¶ 1.) T–Mobile provides wireless telecommunications services, including voice, data, and wireless broadband internet services, pursuant to licenses issued by the FCC. ( Id.) The Board is the governing body of Fairfax County pursuant to, inter alia, the provisions of Va.Code Ann. §§ 15.2–1400 et seq. (2010). (Compl. ¶ 3, Answer ¶ 3.)

Following a public hearing on January 12, 2010, the Board denied two related land use applications filed by T–Mobile. (Pl.'s Mem. In Supp. of Its Mot. for Summ. J. at 3 (“Pl.'s Mem.”); Def.'s Mem. of P. & A. In Supp. of Def.'s Mot. for Summ. J. at 1 (“Def.'s Mem.”).) T–Mobile applied to extend an existing 100–foot transmission pole (the “Pole”) by 10 feet and to install a wireless telecommunications facility on the extension (the “Proposed Facilities”). ¹ (Pl.'s Mem. at 6–7; Def.'s Mem. at 4.) The Pole sits at the intersection of the historic scenic byway Georgetown Pike, Dolley Madison Boulevard, and Colonial Farm Road in McLean, Virginia. (Pl.'s Mem. at 6; Def.'s Mem. at 17; FFX–000019,² –000640, –000646–47.) The Pole is one in a line of existing transmission poles located on property that is currently used as a public right-of-way. (Pl.'s Mem. at 6–7; Def.'s Mem. at 4, FFX–000019.) The public right-of-way has been zoned to the R–1 District (a residential district). (Pl.'s Mem. at 6–7; Def.'s Mem. at 4; FFX–000019.)

The area surrounding the Pole is developed primarily with stable residential neighborhoods. (Def.'s Mem. at 4; Pl.'s Mem. at 4; FFX–000020.) Specifically, the Evermay subdivision is located to the South of the Pole and consists of detached, single-family dwellings. (Def.'s Mem. at 4; Pl.'s Mem. at 10; FFX–000019, –000165.) The Evermay subdivision is zoned to the R–1 District and the R–3 District (a residential district/three dwelling units/acre). (Def.'s Mem. at 4; FFX–000019.) The Evermay subdivision is the nearest residential community to the Pole. (FFX–000224, –000621–22, –000646.) Thus, the residents of the Evermay community are most directly affected by the visual impact of the Pole. (FFX–000224, –000621–22, –000646.) The Pole is currently visible from the Evermay subdivision, and the Proposed Facilities would increase the Pole's visibility from the subdivision. (FFX–000619, –000638–39,–000646.)

Currently, both Verizon Wireless (“Verizon”) and AT & T Wireless (“AT & T”) ³ have panel antennas located on the Pole. (Pl.'s Mem. at 7–8; Def.'s Mem. at 4–5; FFX–000020.) In 2004, the Fairfax County Planning Commission (the “Planning Commission”) approved Verizon's 2232 application to extend the Pole from 90 feet to 100 feet and to attach 12 antennas in a triangular array sticking out from the side of the Pole.⁴ (Pl.'s Mem. at 7–8; Def.'s Mem. at 5; FFX–000020.) Because of the increase in the height of the Pole, Verizon's 2232 application was strongly opposed by members of the Evermay residential community.⁵ (Def.'s Mem. at 5; Pl.'s Mem. In Opp'n to Def.'s Mot. for Summ. J. at 8; FFX–000184, –000621–22.)

In 2006, the Planning Commission approved AT & T's Feature Shown application to install 9 panel antennas 10 feet below Verizon's antennas on the Pole. ⁶ (Pl.'s Mem. at 8, 24–25; Def.'s Mem. at 5; FFX–000020.) Like Verizon's antennas, AT & T's antennas were arranged in a triangular array sticking out from the side of the Pole. (Pl.'s Mem. at 24–25; Def.'s Mem. at 5.) The Evermay community did not object to AT & T's application because AT & T did not seek to increase the height of the Pole. (Def.'s Mem. at 5; FFX–000184, –000622.)

On March 31, 2009, T–Mobile filed a 2232 application ⁷ proposing to extend the Pole by an additional 10 feet for the purpose of installing wireless telecommunications facilities. (Pl.'s Mem. at 7; Def.'s Mem. at 4; FFX–000068–70.) The extension would increase the height of the Pole, which is already the tallest pole in corridor, to a total height of 110 feet. (FFX–000646–47.) In order to make the Proposed Facilities less visually intrusive, T–Mobile sought to mount 3 panel antennas flush to the Pole and to paint the antennas the color of the Pole. (Pl.'s Mem. at 7; Def.'s Mem. at 4; FFX–000068–70.) T–Mobile concurrently filed a required Special Exception application because of the width of the proposed utility easement.⁸ (Pl.'s Mem. at 10; Def.'s Mem. at 3, FFX–000403–04.)

In reviewing T–Mobile's 2232 application, staff of the Facilities Planning Branch (“FPB”) of the Fairfax County Department of Planning and Zoning attended a visibility test of the Proposed Facilities conducted by T–Mobile. (FFX–000221.) The test involved raising a crane located near the Pole to a height of 110 feet. ( Id.) The test revealed that the Pole would be more visible from nearby residential properties, including the Evermay subdivision. ( Id.; FFX–000638–39.) Nonetheless, FPB staff recommended approval of T–Mobile's applications because it believed that the Proposed Facilities would not have a significant adverse visual impact on the nearby residential areas and public way. (FFX–000223–25.) FPB staff determined that T–Mobile's proposal to extend the height of the pole in order to ‘collocate’ the antennas was “consistent with the spirit and intent of the Plan....” ⁹ (FFX–000223.) FPB staff also stated that the Proposed Facilities would blend with the buffer of vegetation and trees, as well as the existing transmission poles. (FFX–000223–25.) Ultimately, FPB staff concluded in its Report to the Planning Commission that the location, character, and extent of the Proposed Facilities were substantially in accord with the County's Comprehensive Plan. ( Id.)

On November 5, 2009, the Planning Commission held a public hearing on T–Mobile's applications. (FFX–000613–32.) The Planning Commission considered the FPB Staff Report and presentations by both a T–Mobile representative and a representative of the National Park Service, George Washington Memorial Parkway. (FFX–000613–21, –000626–30.) The Planning Commission also considered numerous letters from members of the Evermay community, as well as the testimony of a representative of the Evermay community. (FFX–000166–80, –000182–92, –000287–309, –000621–25.) Finally, the McLean Citizens Association submitted a Resolution in support of T–Mobile's 2232 and Special Exception applications. (FFX–000612.) On November 18, 2009, the Planning Commission voted 5–0–5 to deny T–Mobile's 2232 application and to recommend that the Board deny T–Mobile's Special Exception application. (FFX–000195–201.) T–Mobile appealed the Planning Commission's denial of its 2232 application to the Board. (FFX–000366–72.)

Following the Planning Commission's denial of T–Mobile's 2232 application, FPB staff submitted an additional Consideration Item to the Board to be considered along with T–Mobile's appeal. (FFX–000313–19.) The Consideration Item noted that, although FPB staff had initially recommended approval, the Planning Commission was not required to follow the staff's recommendations. (FFX–000317–18.) Furthermore, FPB staff concluded in the Consideration Item that “a reasonable person could review the Comprehensive Plan recommendations, the subject proposal by T–Mobile, and other written information available to the Planning Commission, and conclude that the record supported a decision that [the Proposed Facilities were] not substantially in accord with the Comprehensive Plan.” (FFX–000319.)

On January 12, 2010, the Board held a public hearing on both T–Mobile's Special Exception application and T–Mobile's appeal of the Planning Commission's denial of its 2232 application. (FFX–000633–48.) The Board considered the original record, including the FPB Staff Report; letters from the Evermay community; the resolution by the McLean Citizens Association; the FPB Staff Consideration Item; a presentation by a T–Mobile representative; a presentation by FPB staff; and testimony from two representatives of the Evermay community. ( Id.) The Board concluded that T–Mobile's Proposed Facilities were not in conformance with the Comprehensive Plan and Zoning Ordinance and voted unanimously to deny T–Mobile's applications. (FFX–000648.)

On February 12, 2010, T–Mobile filed a three-count Complaint in this Court against the Board alleging violations of the Telecommunications Act of 1996 (the “TCA”). See 47 U.S.C. § 332(c)(7)(B)(v)(2006).¹⁰ In...