Agenda - Planning Commission - 01/07/2016

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December 10, 2015 I Volume 9 I Issue 23 Zoning Bulletin county board of supervisor's denial of an application to build a wireless communication facility was not supported by substantial evidence and thus was in violation of the federal Telecommunications Act. The Background/Facts: CWS VII, LLC ("CWS"), a wireless network infrastructure developer, sought to build a 140 -foot -high wireless telecom- munications facility. CWS sought to build the facility, disguised as a bell tower with antennas, on property owned and occupied by a church in a R-1 zoning district (Residential District, One Dwelling Unit/Acre) in the Town of Vienna, County of Fairfax (the "County"), Virginia. The property was surrounded by other R-1 District properties, as well as an elementary school in an R-2 District (Residential District, Two Dwelling Units/Acre), an undeveloped parcel zoned PDH -2 (Planned Development Housing District, Two Dwelling Units/Acre). Five properties listed on the Fairfax County Inventory of Historic Sites were located in the immediate vicinity of the site. In furtherance of the wireless facility development objective, CWS and the Trustees of the Andrew Chapel United Methodist Church (the "Church") applied to the County. The County Planning Commission approved the ap- plication, but, ultimately, the County Board of Supervisors (the "Board") rejected the application. In rejecting the application, the Board cited as its primary concern "the adverse visual impact on the adjacent residential area and public way, due to the proposed facility's height and lack of adequate screening." The Board also found that that the proposed facility was "not harmonious with the use of neighboring residential properties and would negatively impact adjacent historical properties, and determined that Ap- plicants had failed to demonstrate that alternative sites and technologies would not provide adequate coverage." CWS, as well as Cellco Partnership d/b/a Verizon Wireless ("Verizon")— who was not a party to the application but had later expressed its intent to enter into an agreement with CWS to locate an antenna on the proposed site—appealed the Board's denial of the application. Among other things, CWS and Verizon (collectively, the "Plaintiffs") argued that in denying the application, the Board violated the federal Telecommunication Act's requirement that the decision be supported by substantial evidence (47 U.S.C.A. § 332(c)(7)(B)(iii)). They also argued that the Board's action prohibited or had the effect of prohibiting Verizon from providing personal wireless services, in violation of the Act (47 U.S.C.A. § 332(c)(7)(B)(i)(II)). The Board moved for summary judgment. It asked the court to find there were no material issues of fact in dispute and to decide the matter in its favor on the law alone. DECISION: Board's motion for summary judgment granted. The United States District Court, E.D. Virginia, Alexandria Division, held that: substantial evidence supported the Board's denial of the applica- tion to the build the wireless facility; and did not prohibit the provision of "personal wireless services" by Verizon in violation of the Act. In its decision, the court explained that the Telecommunications Act. requires that any decision by a local government to "deny a request to place, 6 © 2015 Thomson Reuters