Agenda - Planning Commission - 06/07/2012

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April 25, 2012 Volume 6 No. 8 Zoning Bulletin The United States Court of Appeals, Fourth Circuit, agreed with the district court. It held that substantial evidence supported the Board's denial of AT & T's special exception application. In addressing AT & T's argument that the Board had violated the "substan- tial evidence requirement" of the Act, the court explained that the "substantial evidence requirement" mandates that "[a]ny decision by a State or local govern- ment or instrumentality thereof to deny a request to place, construct or modify personal wireless service facilities shall be ... supported by substantial evidence." 332(c)(7)(B)(iii).) In determining that the Board's decision to deny AT & T's ap- plication satisfied the substantial evidence requirement, the court explained that "a proposed telecommunications facility's inconsistency with local zoning require- ments can be sufficient to establish substantial evidence supporting the denial of a zoning application." The court further noted that "even in the face of conflict- ing evidence presented by the wireless provider, sufficient evidence may support a board's decision where there is evidence that the proposed facility `would be inconsistent with' a county's `Comprehensive Plan' or `Zoning Ordinance."' Here, the court found that the Board had identified a number of ways (listed above) in which AT & T's proposed wireless facility would not be in harmony with the zoning objective and the Comprehensive Plan for that geographic area. Indeed, the court found that the proposed facility was "far from `provid[ing] the least visual impact on residential areas,"' as required by the County's Policy Plan. When considering at all of the characteristics of the proposal (from distance to neighboring residences, to height of the tree monopole over existing trees, to vegetation at the proposed site), the court found them adequate to support the Board's conclusion that the proposed facility did not satisfy the County's Policy Plan or the standards for approval under the Ordinance. In rejecting AT & T's argument that the Board's denial of AT & T's special exception application had the effect of prohibiting a carrier from providing per- sonal wireless service in the area, in violation of the Act, the court explained that a zoning board could limit the level of wireless services available without violat- ing the Act; the Act did not guarantee 100% coverage. Moreover, in order for AT & T' to prevail on this argument, the court said it had to meet one of two standards: It had to establish (1) that the Board had a general policy that effec- tively guaranteed the rejection of all wireless facilities; or (2) that the denial of its application for this one particular site was "tantamount" to a general prohibi- tion on service. Here, in arguing the second theory, the court found that AT & T failed to provide evidence to establish "a lack of reasonable alternative sites" and failed to demonstrate that further reasonable efforts to gain approval for alternative facili- ties would be "fruitless." Based on this failure of proof, the court found that the summary judgment was properly granted to the Board on AT & T's claim that the Board's denial of its application violated subsection B(i)(II) of the Act. See also: AT & T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjust- ment, 172 E3d 307 (4th Cir. 1999). See also: 360 degrees Communications Co. of Charlottesville v. Board of Sup'rs of Albemarle County, 211 E3d 79 (4th Cir. 2000). 4 © 2012 Thomson Reuters