Agenda - Planning Commission - 07/12/2012

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Zoning Bulletin May 10, 2012 j Volume 6 l Issue 9 The Fourth Circuit has jurisdiction over Maryland, North Carolina, South 1 Carolina, Virginia, and West Virginia. FOURTH CIRCUIT (VIRGINIA (03/26/12)—This case addressed the is- sue of whether the denial of an application for a conditional use permit to construct a wireless telecommunications tower was supported by substantial evidence, as required by the Telecommunications Act of 1996, 47 U.S.C.A. § 332(c)(7)(B)(iii). The Background/Facts: T-Mobile Northeast LLC ("T-Mobile") sought to fill a gap in its wireless service coverage by constructing a new wireless com- munication tower at an elementary school (the "School") in Newport News, Virginia (the "City"). As required by the City's zoning ordinance, T-Mobile applied for a conditional use permit ("CUP") to construct the tower at the School. The City's Planning Department and the City's Planning Commission both recommended that the City approve T-Mobile's application. However, the City Council voted without explanation to deny T-Mobile's application. T-Mobile subsequently sued the City and the City Council. It alleged viola- tions of § 704 of the federal Telecommunications Act of 1996 ("TCA"). Among other things, T-Mobile alleged that the City Council's denial of its requested CUP was "not supported by substantial evidence," in violation of 47 U.S.C.A. § 332(c)(7)(B)(iii). The district court agreed with T-Mobile. It issued an injunction directing that T-Mobile's application be granted. The City Council appealed. DECISION: Affirmed. The United States Court of Appeals, Fourth Circuit, also agreed with T-Mobile that the City Council's denial of T-Mobile's CUP application was not supported by substantial evidence, in violation of TCA § 332(c)(7)(B)(iii). In so holding, the court explained that the TCA "limit[s] the ability of state and local governments to frustrate the [ ] national purpose of facilitating the growth of wireless telecommunications, [but] also . . . preserve[s] state and local control over the siting of towers and other facilities that provide wireless services." In order to strike this balance, further explained the court, the TCA "preserves the power of the local zoning authority 'over decisions regarding the placement, construction, and modification of personal wireless service fa- cilities,' while placing certain limits on that authority." One of those limita- tions is that the TCA requires that any decision by state or local government to deny a request to place or construct personal wireless service facilities "shall be in writing and supported by substantial evidence contained in a written record." (47 U.S.C.A. § 332(c)(7)(B)(iii).) "Substantial evidence," explained the court means: more than a mere scintilla, but less than a preponderance. Also, emphasized the court, in reviewing whether a decision is supported by substantial evidence, courts look only to whether the denial —not the applica- tion itself is supported by substantial evidence. Here, the court found that the City Council's denial of T-Mobile's CUP ap- plication was not supported by substantial evidence in light of the following ©2012 Thomson Reuters 3