Agenda - Planning Commission - 07/10/2014

Home

Zoning Bulletin May 25, 2014 I Volume 8 I Issue 10 Church to construct a bell tower for its own use . . .." It argued that because the county's zoning rules would accept the visual impact of a similar bell tower without a telecommunications antenna within it, it was not legitimate to reject T-Mobile's bell tower based on visual impact. The court of appeals rejected that argument, noting that the fact that the Church would not need a special exception to construct a simi- lar bell tower without a telecommunications facility in it did not imply that citizens may not have legitimate objections to such a tower. More- over, the court noted that any zoning decision "reflects a balance be- tween the benefit provided by the facility and the aesthetic harm caused, and thus a local government might be willing to tolerate what is aesthetically displeasing for one type of use but not for another." The court concluded that the Board's aesthetic reasons for the denial had "substantial support in the record as a whole." T-Mobile had also argued that the Board's denial of its Bell Tower Site application had the effect of prohibiting it from providing personal wireless service, in violation of § 332(c)(7)(B)(i)(II) of the Telecom- munications Act ("The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services"). The court of appeals explained that if the local government rejects a facility at a single site, the telecommunications provider may demonstrate that the rejection was "tantamount to a general prohibition of service" by showing: (1) that there is an "effective absence of coverage" in the area surrounding the proposed facility; and (2) that there is a "lack of reasonable alterna- tive sites to provide coverage" or that "further reasonable efforts to gain approval for alternative facilities would be `fruitless.' " Here, the court of appeals found that T-Mobile had failed to "carry its substantial burden of demonstrating that alternative sites were not available to remedy the deficiency in coverage that it had identified." See also: New Cingular Wireless PCS, LLC v. Fairfax County Bd. of Supervisors, 674 F.3d 270 (4th Cir. 2012). See also: T-Mobile Northeast LLC v. Fairfax County Bd. of Sup'rs, 672 F.3d 259 (4th Cir. 2012). ©2014 Thomson Reuters 5