Agenda - Planning Commission - 07/10/2014

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May 25, 2014 I Volume 8 I Issue 10 Zoning Bulletin conclusion that the Board's decision on the Silo Site was supported by substantial evidence. DECISION: Judgment of United States District Court affirmed. With regard to the Silo Site, the United States Court of Appeals, Fourth Circuit, held that the Board's decision to deny the telecom- munications tower application based on concerns about radio frequency emissions violated the Telecommunications Act. The court further held that the fact that the Board also relied on valid reasons to support its decision did not immunize its violation of the statutory limitation. In so holding, the court explained that the Telecommunications Act of 1996 was enacted "[t]o promote competition and reduce regulation in order to secure lower prices and higher quality services for Ameri- can telecommunication consumers and encourage the rapid deploy- ment of new telecommunications technologies." The court noted that the Act specifically provides that in regulating the siting and construc- tion of wireless facilities, a state or local government, may not, among other things, "regulate the placement, construction or modification of such facilities 'on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions.' " (47 U.S.C.A. § 332(c)(7)(B).) On appeal, the Board admitted that its denial of the application based on radio frequency emission concerns was illegal. However, it argued that its decision to deny the application was also based on valid reasons that were sufficient to deny the application. The Board contended that therefore the court's injunction was simply punishment for the inclu- sion of an illegal reason. The court of appeals rejected that argument. The district court had found that the other "valid" reasons cited 'by the Board in the denial were simply pretexts for unlawfully denying the permit application. The district court had also found that the record contained substantial evidence to support approval of the application. Based on those find- ings, the court of appeals agreed the matter should not be remanded to the Board. The court of appeals concluded that while the Board would, on remand, omit its concerns over radiation when giving reasons for denial of the application, the radiation concerns would nonetheless persist as part of the decision -making process. To allow the denial would therefore "mock Congress's prohibition against the use of radio frequency emissions as a basis for regulating wireless facilities when those emissions were in compliance with FCC regulations," concluded the court. As to the Bell Tower Site, T-Mobile had contended that, the Board's aesthetic concerns and reasons for the application denial "were not le-. gitimate . . . because existing zoning at the site already authorized [a] 4 © 2014 Thomson Reuters