Agenda - Planning Commission - 01/07/2016

Home

Zoning Bulletin December 10, 2015 1 Volume 9 1 Issue 23 construct, or modify personal wireless service facilities" be "supported by substantial evidence contained in a written record." (47 U.S.C.A. § 332(c)(7)(B)(iii).) The court further explained that "[s]ubstantial evidence is more than a mere scintilla but less than a preponderance of the evidence, and means that the [c]ourt must detemiine whether the record contains 'such relevant evidence as a reasonable mind might accept as adequate to support' the Board's decision." The court said that "evidence of a proposed facility's adverse impact on the surrounding neighborhood or of an application's in- consistency with the Zoning Ordinance and Comprehensive Plan can consti- tute substantial evidence that justifies denial of an application, even when the applicant has provided conflicting evidence." Here, the court found that the Board members had discussed the tower's negative impacts to the residential area surrounding the proposed site and to the historical properties in the area, and had tied each concern to a specific provision in the County's Comprehensive Plan. The court found that the ev- idence showed that despite being disguised as a bell tower, the proposed communication facility would have been four times taller than nearby homes and twice as tall as surrounding trees. The court found that this was substantial evidence supporting the Board's denial. In holding that the Board's decision did not prohibit "personal wireless services" by Verizon in violation of the Act (47 U.S.C.A. § 332(c)(7)(B)(i)(II)), the court found that Verizon failed to carry its heavy burden of demonstrating both a "a legally cognizable deficit in coverage amounting to an effective absence of coverage" and a lack of "reasonable alternative sites to provide coverage. The court found that Verizon had not proven an effective absence of coverage. Although Verizon had shown its desire to provide 100% coverage and to improve and expand its services, the court said such goals were not protected by the Act. At most, here, the court found that Verizon's evidence indicated that the Board's decision prevented Verizon from improving existing service, particularly wireless internet and data service, but it did not demonstrate that the decision prohibited Verizon from providing personal wireless services under the terms of the Act. Furtheuuore, even if Verizon had proven that there were cognizable gaps in coverage, Verizon had to also demonstrate that no reasonable alternative sites could provide that coverage and that further efforts to gain approval of alternate sites would be futile, and the court found Verizon failed to make such a demonstration. See also: New Cingular Wireless PCS, LLC v. Fairfax County Bd. of Supervisors, 674 F.3d 270 (4th Cir. 2012). See also: 360 degrees Communications Co. of Charlottesville v. Board of Sup'rs of Albemarle County, 211 F.3d 79 (4th Cir. 2000). Case Note: The Board had argued that neither CWS nor Verizon had standing (i.e., the legal right) to contest the Board's decision. The court agreed that Verizon did not have standing, but found that CWS did have standing. ,The court explained that the © 2015 Thomson Reuters 7