Agenda - Planning Commission - 07/10/2014

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Zoning Bulletin May 25, 2014 I Volume 8 I Issue 10 Citation: T-Mobile Northeast LLC v. Loudoun County Bd. of Sup'rs, 2014 WL 1317698 (4th Cir. 2014) The Fourth Circuit has jurisdiction over Maiyland, North Carolina, South Carolina, Virginia, and West Virginia. FOURTH CIRCUIT (VIRGINIA) (04/03/14)—This case addressed the issue of whether a zoning board's reliance on valid reasons to sup- port its decision to deny an application to build a telecommunications tower immunized its violation of the Telecommunications Act where it also based its decision on the prohibited basis of radio frequency emis- sions concerns. The case also addressed whether a zoning board's denial of another telecommunications tower application caused an ef- fective prohibition of service in the area in violation of the Telecom- munications Act. The Background/Facts: In an effort to close "substantial gaps" in coverage, T-Mobile Northeast LLC ("T-Mobile") submitted applica- tions to the Loudoun County Board of Supervisors (the "Board") for permits to construct monopole antennas at two different sites —one disguised as a silo (the "Silo Site") and the other as a bell tower (the "Bell Tower Site"). The Board ultimately denied both applications. The Board based its denial of the Silo Site application on the "negative environmental impact" from radio frequency emissions, along with aesthetic concerns, the availability of other potential sites, and the expected impact on residential uses. T-Mobile commenced an action in federal district court under the Telecommunications Act of 1996, challenging the Board's decisions. With respect to the Silo Site, T-Mobile alleged that the Board's denial was not supported by substantial evidence and was illegally made on the basis of the environmental effects of radio frequency emissions, in violation of the Telecommunications Act. With respect to the Bell Tower Site, among other things, T-Mobile alleged that the Board's rejection was not supported by substantial evidence, and caused an ef- fective prohibition of service. Finding no material issues of fact in dispute, and deciding the matter on the law alone, the district court entered summary judgment in favor of T-Mobile on the Silo Site, concluding that although the Board's rejection was supported by substantial evidence, the Board improperly relied on the environmental effects of radio frequency emissions. The court entered an injunction directing the Board to issue the necessary permits to T-Mobile for construction of the Silo Site tower. As to the Bell Tower Site, the court entered judgment in favor of the Board, rejecting each of T-Mobile's arguments. The Board filed an appeal challenging the court's decision on the Silo Site, and T-Mobile filed a cross -appeal challenging the court's af- firmance of the Board's decision on the Bell Tower Site, as well as its ©2014 Thomson Reuters 3