USCOC of Virginia RSA 3, Inc. v. Montgomery County Board of Supervisors ( 2003 )

Filed: October 9, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 03-1322(L)
(CA-02-1065-7)
USCOC of Virginia, etc., et al.,
Plaintiffs - Appellees,
versus
Montgomery County Board of Supervisors,
Defendant - Appellant.
O R D E R
The court further amends its opinion filed September 10, 2003,
and amended September 25, 2003, as follows:
On page 4, first paragraph, line 1 -- “Cellular” is corrected
to read “U.S. Cellular.”
On page 11, second full paragraph, line 8 -- The sentence
beginning “In ATC Realty, the First Circuit ....” will now start a
new paragraph.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Filed: September 25, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 03-1322(L)
(CA-02-1065-7)
USCOC of Virginia, etc., et al.,
Plaintiffs - Appellees,
versus
Montgomery County Board of Supervisors,
Defendant - Appellant.
O R D E R
The court amends its opinion filed September 10, 2003, as
follows:
On page 3, section 1 -- counsel on brief for Amici Curiae are
corrected to read as follows:
James R. Hobson, MILLER & VAN EATON, P.L.L.C.,
Washington, D.C.; Joseph P. Rapisarda, Jr., County
Attorney, J. T. Tokarz, Assistant County Attorney, Karen
Adams, Assistant County Attorney, COUNTY OF HENRICO,
Richmond, Virginia; Paul S. McCulla, Fauquier County
Attorney, Warrenton, Virginia; Walter C. Erwin, III,
President, LGA/Lynchburg City Attorney, Andrew R.
McRoberts, Chairman, LGA Amicus Committee/Goochland
County Attorney, Richmond, Virginia, for Amici Curiae
Henrico County, et al. John D. Eure, JOHNSON, AYERS &
MATTHEWS, Roanoke, Virginia, for Amicus Curiae Cellular
Telecommunications.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
USCOCOF VIRGINIA RSA#3,
INCORPORATED, a Virginia
Corporation; ERNIE R. MARSHALL,
Plaintiffs-Appellees,
v.
MONTGOMERY COUNTY BOARD OF
SUPERVISORS,
Defendant-Appellant. No. 03-1322
HENRICO COUNTY; FAUQUIER COUNTY;
LOCAL GOVERNMENT ATTORNEYS OF
VIRGINIA, INCORPORATED,
Amici Supporting Appellant.
CELLULAR TELECOMMUNICATIONS AND
INTERNET ASSOCIATION,
Amicus Supporting Appellees.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
USCOCOF VIRGINIA RSA#3,
INCORPORATED, a Virginia
Corporation; ERNIE R. MARSHALL,
Plaintiffs-Appellants,
v.
MONTGOMERY COUNTY BOARD OF
SUPERVISORS,
Defendant-Appellee. No. 03-1341
HENRICO COUNTY; FAUQUIER COUNTY;
LOCAL GOVERNMENT ATTORNEYS OF
VIRGINIA, INCORPORATED,
Amici Supporting Appellee.
CELLULAR TELECOMMUNICATIONS AND
INTERNET ASSOCIATION,
Amicus Supporting Appellants.
4444444444444444444444444444444444444444444444448
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-02-1065-7)
Argued: June 5, 2003
Decided: September 10, 2003
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
____________________________________________________________
Reversed in part and affirmed in part by published opinion. Judge
Shedd wrote the opinion, in which Judge Wilkinson and Judge Luttig
joined.
____________________________________________________________
2
COUNSEL
ARGUED: Kevin Philip Oddo, FLIPPIN, DENSMORE, MORSE &
JESSEE, Roanoke, Virginia, for Appellant. James Robert Creekmore,
WOODS, ROGERS & HAZLEGROVE, Roanoke, Virginia, for
Appellees. ON BRIEF: Joseph M. Rainsbury, FLIPPIN, DENS-
MORE, MORSE & JESSEE, Roanoke, Virginia; Martin M.
McMahon, MONTGOMERY COUNTY ATTORNEY'S OFFICE,
Christiansburg, Virginia, for Appellant. Frank K. Friedman, WOODS,
ROGERS & HAZLEGROVE, Roanoke, Virginia, for Appellees.
James R. Hobson, MILLER & VAN EATON, P.L.L.C., Washing-
ton, D.C.; Joseph P. Rapisarda, Jr., County Attorney, J. T. Tokarz,
Assistant County Attorney, Karen Adams, Assistant County Attorney,
COUNTY OF HENRICO, Richmond, Virginia; Paul S. McCulla,
Fauquier County Attorney, Warrenton, Virginia; Walter C. Erwin, III,
President, LGA/Lynchburg City Attorney, Andrew R. McRoberts,
Chairman, LGA Amicus Committee/Goochland County Attorney,
Richmond, Virginia, for Amici Curiae Henrico County, et al. John D.
Eure, JOHNSON, AYERS & MATTHEWS, Roanoke, Virginia, for
Amicus Curiae Cellular Telecommunications.
____________________________________________________________
OPINION
SHEDD, Circuit Judge:
USCOC of Virginia RSA#3, Inc. ("U.S. Cellular") and Ernie Mar-
shall applied for a special use permit to construct a wireless telecom-
munications transmission tower on Marshall's land in Montgomery
County, Virginia. The Montgomery County Board of Supervisors
("Board") denied the application but, in its stead, approved a permit
for a shorter, less obtrusive tower. U.S. Cellular and Marshall (collec-
tively, "U.S. Cellular") brought suit under the Telecommunications
Act of 1996 ("TCA"), alleging that the Board's decision had "the
effect of prohibiting the provision of personal wireless services," in
violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), and that the Board's deci-
sion was not based upon substantial evidence, in violation of 47
U.S.C. § 332(c)(7)(B)(iii). U.S. Cellular also asserted a claim under
Virginia law. On cross-motions for summary judgment, the district
court granted the Board's motion as to the prohibition of service
claim but granted U.S. Cellular's motion as to the substantial evi-
dence and Virginia law claims. Because the district court found that
the Board had violated the TCA on the substantial evidence claim, it
ordered the Board to issue the permit for the taller tower. For the rea-
sons set forth below, we affirm on the prohibition of service claim,
reverse on the substantial evidence claim, and reverse on the Virginia
law claim.
3
I.
U.S. Cellular sought to erect a tower near the town of Riner in Mont-
gomery County, Virginia, to fill a coverage gap along a nine-mile
stretch of Route 8. After conducting engineering studies, U.S. Cellu-
lar identified a parcel of Marshall's property on Pilot Mountain as the
ideal location for a tower. Thereafter, U.S. Cellular and Marshall
entered into an agreement to locate the tower on Pilot Mountain.
On May 1, 2002, U.S. Cellular applied for a special use permit
from the Board to construct a 240-foot (plus a nine-foot lightning rod)
wireless telecommunications tower. The proposed design called for
the tower to be lighted and lattice in structure. Because of its height
and location on Pilot Mountain, the tower would be visible along the
ridge line, extending 170 feet above the tree canopy.
The proposed tower implicates Montgomery County's land use
policies. For example, Marshall's property is zoned as exclusively
agricultural, and it is designated by the Montgomery County Compre-
hensive Plan as a "Conservation Area." In addition, the Regional
Approach to Telecommunications Towers, incorporated into the
Comprehensive Plan, provides guidelines for the county's consider-
ation of new tower requests.1 First, the Regional Approach encour-
ages the provision of new service capacity by locating new antennas
on pre-existing telecommunications towers or other structures, a prac-
tice known as co-location. Second, the Regional Approach encour-
ages the use of monopole stealth towers in lieu of the more intrusive
lattice structures. Monopole stealth towers consist of hollow metal
tubes and are designed to blend into the surroundings. Third, the
Regional Approach directs that towers be constructed in areas "that
will provide the least negative impact to the citizens of each jurisdic-
tion." To help alleviate the negative impacts associated with towers,
the Regional Approach provides a preferred hierarchy of lands on
which to construct new towers. Ridge line property zoned as agricul-
____________________________________________________________
1
Staff members representing Montgomery and Pulaski Counties, as
well as the cities of Radford, Blacksburg, and Christiansburg, developed
the Regional Approach in an effort to create "a uniform approach toward
analyzing and processing telecommunication tower siting requests from
a land use perspective."
4
tural or conservation, such as the property at issue here, ranks as one
of the least preferred categories of land for the construction of tele-
communications towers.2
Hearings on the request for the tower were held before the Mont-
gomery County Planning Commission and the Board. In support of
its application, U.S. Cellular introduced a petition signed by approxi-
mately 100 people in favor of the proposed tower. The individuals
who signed the petition, however, were not all residents of Riner. In
fact, a significant number of signatures were supplied by people who
lived outside Riner but traveled through the area to be served by the
tower. The only letter received in opposition was submitted by the
resident who owned property adjacent to the proposed site.
After a first round of hearings, the Board authorized the county's
consultants, Strategic Communication Services ("SCS") and
Tradewinds, to evaluate the signal strengths that would be generated
by both the proposed tower and an alternative height of 195-feet.3 The
Board also directed the consultants to determine whether any co-
location opportunities would obviate the need for a new tower.
____________________________________________________________
2
The Regional Approach ranks, from most to least preferable, the cate-
gories of land on which to build new telecommunications towers. The list
is as follows:
A. Industrial parks
B. Industrial zoned lands
C. Commercially zoned lands
D. High density residential lands
E. Agriculture/Conservation zoned lands-non-ridge, wooded
F. Agriculture/Conservation zoned lands-non-ridge, open
G. Medium density residential lands
H. Agriculture/Conservation zoned lands-ridge line
I. Low density residential lands.
(Emphasis added.)
3
Federal regulations require lighting for structures that exceed 199
feet. This alternative height, therefore, would not require lighting.
5
The consultants' reports were generally favorable to U.S. Cellular.
For example, the SCS report found that U.S. Cellular selected the
"optimum site to provide maximum coverage along Route 8." It also
determined that a shorter tower of 195-feet would result in a coverage
loss of approximately 33% and that none of the existing co-location
sites presented valid opportunities. The Tradewinds report reached
substantially similar results and noted that, due to the proposed height
of the tower, the county should consider granting a variance from the
Comprehensive Plan's preference for monopole towers. The
Tradewinds report did note, however, that a single 240-foot tower was
not the only option that would provide the desired coverage. Equiva-
lent coverage would be realized if multiple, shorter towers were built.
After the completion of the consultants' studies, Steve Sandy, the
county zoning administrator, recommended to the Planning Commis-
sion and to the Board that the permit be granted for a 195-foot (plus
a four-foot lightning rod), unlighted, monopole stealth tower. Sandy
noted that while the shorter tower would not provide optimal cover-
age, it would provide service for a large portion of the target area and
would more closely conform to the Comprehensive Plan.
The Planning Commission and the Board conducted a second
round of hearings, and on August 14, 2002, the Planning Commission
adopted Sandy's recommendation and referred it to the Board. On
August 26, 2002, the Board considered U.S. Cellular's application,
along with Sandy's proposed compromise, and conducted extended
debate. The transcript of the proceedings indicates that numerous
issues were discussed, including (1) the taller tower's failure to con-
form to the Comprehensive Plan and the Regional Approach; (2) the
visual intrusiveness of the taller tower; (3) the option of building mul-
tiple, shorter towers; (4) the substantial coverage that would be pro-
vided by the shorter tower; and (5) the possibility that, even with the
taller tower, additional sites would be necessary to fill gaps in cover-
age. At the conclusion of the debate, the Board voted on both the 240-
foot and the 195-foot towers. By a vote of four to three, the Board
rejected the 240-foot tower. Immediately thereafter, the Board
approved the 195-foot tower by the same margin.
Subsequently, U.S. Cellular brought an action in the district court,
alleging that the Board violated the TCA because the denial of the
6
permit had the effect of prohibiting the provision of personal wireless
services and because the denial of the permit was not supported by
substantial evidence in a written record. U.S. Cellular also brought a
claim under Virginia law, alleging that the Board acted arbitrarily and
unreasonably. On cross-motions for summary judgment, the district
court granted the Board's motion as to the denial of service claim but
granted U.S. Cellular's motion as to the substantial evidence and Vir-
ginia law claims. Because the court determined that the Board had
violated the TCA on at least one of the claims, the court ordered the
Board to approve the special use permit for the 240-foot tower. Both
parties appeal.
II.
The TCA preserves the power of local governments to regulate the
construction of wireless telecommunications facilities but imposes
several restrictions on local authority. See 47 U.S.C. § 332(c)(7).4
Among these limitations, a local government may not engage in regu-
lation that prohibits or has "the effect of prohibiting the provision of
personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). In addi-
____________________________________________________________
4
Section 704(a)(7) of the TCA, codified as 47 U.S.C. § 332(c)(7), pro-
vides, in pertinent part:
(A) General authority
Except as provided in this paragraph, nothing in this chapter
shall limit or affect the authority of a State or local government
or instrumentality thereof over decisions regarding the place-
ment, construction, and modification of personal wireless service
facilities.
(B) Limitations
(i) The regulation of the placement, construction, and modifica-
tion of personal wireless service facilities by any State or local
government or instrumentality thereof. . .
(II) shall not prohibit or have the effect of prohibiting the provi-
sion of personal wireless services. . .
(iii) Any decision by a State or local government or instrumen-
tality thereof to deny a request to place, construct, or modify per-
sonal wireless service facilities shall be in writing and supported
by substantial evidence contained in a written record. . . .
7
tion, a local government's denial of a request to construct a wireless
service facility must be supported by "substantial evidence in a writ-
ten record." 47 U.S.C. § 332(c)(7)(B)(iii). The TCA provides for a
cause of action to enforce these limitations on local control. 47 U.S.C.
§ 332(c)(7)(B)(v).5
A.
We first address the district court's determination that the Board's
action did not prohibit or have the effect of prohibiting personal wire-
less services. On cross-appeal, U.S. Cellular maintains that, even
though the Board approved a 195-foot tower in lieu of a 240-foot
tower, the resultant coverage would be so inadequate as to create a
prohibition of service along portions of Route 8. We conclude that
U.S. Cellular has not met the burden required in this circuit for pre-
vailing on a prohibition of service claim.
To be entitled to relief under a (B)(i)(II) prohibition of service
claim, the plaintiff's burden is substantial. In AT&T Wireless PCS,
Inc. v. City Council of Virginia Beach, 155 F.3d 423, 428-29 (4th Cir.
1998), we held that a telecommunications provider could not prevail
in a challenge to an individual zoning decision absent a general ban
or policy to reject all applications. See also 360o Communications Co.
v. Board of Supervisors of Albemarle County, 211 F.3d 79, 88 (4th
Cir. 2000) ("The burden for the carrier invoking this provision is a
heavy one: to show from language or circumstances not just that this
application has been rejected, but that further reasonable efforts are
so likely to be fruitless that it is a waste of time to try."). In determin-
ing that an individual zoning decision could not form the basis for a
prohibition of service claim, we reasoned that because subsection
(B)(iii) specifically preserves the authority of local governments to
reject applications for wireless facilities, a reading of the statute that
prohibited local governments from rejecting individual applications
would effectively eliminate local control. To preserve local authority
and to reconcile subsections (B)(i)(II) and (B)(iii), we determined that
____________________________________________________________
5
For ease of reference, the relevant sections of the TCA will also be
referred to by their subsections. Thus, 47 U.S.C. § 332(c)(7)(B)(i)(II)
will be referred to as a (B)(i)(II) and 47 U.S.C. § 332(c)(7)(B)(iii) will
be referred to as (B)(iii).
8
the statute should be interpreted to provide relief only upon a showing
of a blanket ban of wireless facilities. Virginia Beach, 155 F.3d at
429. We have since recognized, however, the theoretical possibility
that the denial of an individual permit could amount to a prohibition
of service if the service could only be provided from a particular site,
but we noted that such a scenario "seems unlikely in the real world."
Albemarle County, 211 F.3d at 86.6
Applying this test, we find that U.S. Cellular has failed to meet its
burden of demonstrating that the Board's action resulted in a prohibi-
tion of service. Although the Board did not approve the 240-foot
tower sought by U.S. Cellular, it did approve the construction of a
195-foot tower, which would provide wireless capabilities to a signifi-
cant area of the county currently without quality wireless service.
Moreover, the Board's careful consideration of the application does
not provide any indication that future tower requests would be "fruit-
less." Far from seeking to prohibit service, Board members indicated
a willingness to ensure coverage for the entire target area. For exam-
ple, Board members discussed the option of building several shorter
towers to make up for the areas unreached by the 195-foot tower. Fur-
thermore, the Board's willingness to approve a tower at all, on a piece
of land disfavored by the Comprehensive Plan and Regional
Approach, indicates that the Board was not hostile to the construction
of new towers. Given these facts, we conclude that the district court
correctly granted summary judgment to the Board on U.S. Cellular's
prohibition of service claim.
____________________________________________________________
6
The Second and Third Circuits have developed a less stringent test for
prohibition of service claims. Under this test, the denial of a permit
would violate the TCA if the proposed facility is "the least intrusive
means to close a significant gap in service." Sprint Spectrum, L.P. v. Wil-
loth, 176 F.3d 630, 643 (2d Cir. 1999); APT Pittsburgh Ltd. P'ship v.
Penn Township, 196 F.3d 469, 480 (3d Cir. 1999). In Albemarle County,
however, we specifically declined to adopt this approach, noting that it
would unnecessarily interfere with the fact-specific nature of the inquiry
and would effectively create a presumption, shifting the burden to the
local government to explain its actions. Albemarle County, 211 F.3d at
87.
9
B.
We turn next to the district court's determination that the Board's
rejection of the 240-foot tower was not based upon "substantial evi-
dence in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). In conduct-
ing the substantial evidence analysis, the district court employed a
comparative approach and determined that the Board's decision to
grant a permit for a 195-foot tower in lieu of a 240-foot tower was
premised solely upon aesthetic considerations, in violation of Virginia
law. Because the district court concluded that the Board's decision
failed to comply with Virginia law, it held that the decision was not
based upon substantial evidence, as required by the TCA, and granted
judgment to U.S. Cellular. We hold that the district court incorrectly
applied Virginia law and erred in employing a comparative approach
in its substantial evidence analysis. Accordingly, we reverse on the
substantial evidence claim.
1.
We first address the district court's determination that the Board's
actions were based solely upon aesthetic considerations in violation
of Virginia law. In Board of Supervisors of James City County v.
Rowe, 216 Va. 128 (1975), the Supreme Court of Virginia held that
a zoning practice based solely upon aesthetics was impermissible
under Virginia law. At issue in Rowe was the validity of a local ordi-
nance that, among other things, required building permit applicants to
submit their plans to an Architectural Design Review Board. The
Review Board would determine whether the designs were "in good
taste" and in "reasonable harmony with the existing buildings in the
surrounding area." Id. at 145. As authority for this requirement, the
James City County Board relied upon a Virginia statute that provided
localities with the power to adopt zoning ordinances that "facilitate
the creation of a convenient, attractive and harmonious community."
The Supreme Court of Virginia, however, concluded that the statute
did not delegate to the Board the broad authority to impose architec-
tural design restrictions that were solely aesthetic in nature. Id. at 145-
146.
The district court here, noting that the record was replete with ref-
erences to the "visual intrusiveness" of the taller tower, determined
10
that the fundamental difference between the two towers was aesthetic
in nature. As the court put it, the shorter tower "looked better."
Accordingly, the court held that the Board engaged in impermissible
aesthetics-only zoning.
We conclude that the Board's actions are not analogous to the
architectural design restrictions prohibited by Rowe. In reaching this
conclusion, we need not determine the precise meaning of the word
"aesthetics," nor is it necessary to outline the exact contours of what
constitutes aesthetics-only zoning under Virginia law. It is sufficient
to say that Virginia law provides, in a statute not at issue in Rowe, that
local governments may regulate the "size, height, area, bulk, location,
erection, construction, reconstruction, alteration, repair, maintenance,
razing, or removal of structures." Va. Code Ann. § 15.2-2280 (empha-
sis added). No matter what zoning practices are actually prohibited
because of an undue emphasis on aesthetic values, Virginia law spe-
cifically authorizes the consideration of factors such as size, height,
and bulk. The Board's consideration of the height of the proposed
tower, therefore, is proper. In addition, the Board's consideration of
the more visually intrusive lattice design, which implicates the size
and bulk of the proposed tower, is also proper. Because the consider-
ation of these factors is authorized by Virginia law, the district court
erred in concluding that the Board engaged in an invalid zoning prac-
tice.
2.
As we have noted, the district court concluded that the sole differ-
ence between the 195-foot and the 240-foot towers was aesthetic in
nature because it applied a comparative test in assessing the substan-
tial evidence claim. The First Circuit has employed this test in con-
ducting a substantial evidence analysis but has expressly refused to
adopt it. See ATC Realty, LLC v. Town of Kingston, New Hampshire,
303 F.3d 91, 95 (1st Cir. 2002). We conclude that the district court's
use of this approach was error.
In ATC Realty, the First Circuit considered whether a local
Planning Board's decision to grant one company's application
for a wireless facility over that of another company was
supported by substantial evidence. This analysis, however, does
not comport with the directive of subsection (B)(iii), which states that
a local government's decision "to deny" a provider's request must be
11
supported by substantial evidence. 47 U.S.C. § 332(c)(7)(B)(iii). The
statute does not direct us to consider the question whether the 195-
foot tower should have been approved in lieu of the 240-foot tower.
It only requires the existence of substantial evidence to support the
denial of the 240-foot tower.
By engaging in a direct comparison between the two towers, the
district court heightened the scrutiny, above that required by the TCA,
that a reviewing court applies to the decisions of local governments.
Such an approach leads to the perverse result of imposing a stricter
standard of review precisely because the Board approved a tower at
all. Under this comparative standard, if the Board had rejected the
application for the 240-foot tower outright, the review would be less
exacting. This approach would discourage local governments from
accommodating carrier requests to build towers in non-preferred
areas, thereby slowing the roll-out of wireless services. The TCA sim-
ply does not require this result. Accordingly, we reject the compara-
tive test employed by the district court and hold that the proper
approach is to determine whether substantial evidence exists to sup-
port the denial of U.S. Cellular's application for the 240-foot tower.7
3.
Having rid the substantial evidence analysis of any comparative
framework, we now proceed directly to the substantial evidence
claim. The Supreme Court has defined "substantial evidence" to mean
"such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion." Universal Camera v. NLRB, 340 U.S.
474, 477 (1951). It requires more than a mere scintilla but less than
a preponderance. 360o Communications Co. v. Board of Supervisors
____________________________________________________________
7
We note that while the substantial evidence inquiry should focus on
the denial of a particular application, the approval of an alternative tower
is a relevant consideration for a reviewing court insofar as it demon-
strates that a local government is not acting out of an anti-tower motiva-
tion and, hence, lacks substantial evidence for its decision. Here, the
approval of the shorter tower, although it is by no means dispositive,
strengthens the Board's argument that its decision was based upon sub-
stantial evidence rather than upon a general hostility to the construction
of new towers.
12
of Albemarle County, 211 F.3d 79, 83 (4th Cir. 2000). In reviewing
the decision of an elected body, we consider the "reasonable mind"
to be that of a reasonable legislator, AT&T Wireless PCS, Inc. v. City
Council of Virginia Beach, 155 F.3d 423, 430 (4th Cir. 1998), and we
do not substitute our judgment for the legislature's but must uphold
the decision if it has "substantial support in the record as a whole."
Id. (quoting NLRB v. Grand Canyon Mining Co., 116 F.3d 1039,
1044 (4th Cir. 1997)). Our inquiry, therefore, is to ask whether a rea-
sonable legislator would accept the evidence in the record as adequate
to support the denial of the application for the 240-foot tower.
The Board argues that its decision was based upon the proposed
tower's inconsistencies with Montgomery County's zoning ordi-
nances and land use guidelines. The location and design of the tower,
for example, did not conform to the Comprehensive Plan or to the
Regional Approach. According to the Board, the proposed tower's
failure to adhere to the applicable zoning requirements provides sub-
stantial evidence to justify the rejection of the tower. We agree.
In 360o Communications Co. v. Board of Supervisors of Albemarle
County, 211 F.3d 79 (4th Cir. 2000), a telecommunications provider
applied for a special use permit to build a tower on Dudley Mountain
in Albemarle County, Virginia, and the local board denied the appli-
cation. The rejection of the proposed tower was based in part on the
tower's failure to comply with the county's Comprehensive Plan, the
Open Space Plan, and Zoning Ordinance. Both the Comprehensive
Plan and Open Space Plan discouraged the construction of structures
that would modify ridge lines and that would contribute to erosion in
mountainous areas. In addition, the proposed tower violated the Zon-
ing Ordinance's limitations on a structure's proximity to neighboring
lots. The provider brought suit under the TCA, claiming that the
denial of the permit was not based on substantial evidence. Upon
review, we upheld the local board's decision. Although the tower's
inconsistency with zoning laws was not the only evidence presented
to justify the denial of the application, we found it to be a significant
factor in our substantial evidence analysis.
Under the rationale of Albemarle County, the failure of U.S. Cellu-
lar's proposed tower to comply with Montgomery County's zoning
ordinances and land use guidelines is a significant evidentiary factor
13
that was properly considered by the Board. The question left unre-
solved by Albemarle County, however, is whether this evidence alone
is sufficient to establish substantial evidence. We conclude that, under
the facts of this case, the proposed tower's inconsistency with local
zoning requirements is sufficient to establish substantial evidence for
the denial of the permit.
We find several zoning issues to be particularly relevant here. First,
the land is zoned as "Agricultural" and designated by the Comprehen-
sive Plan as "Conservation." The use of the land for the construction
of a telecommunications tower is neither agricultural nor does it
appear to have any particular connection with conservation goals.
Second, the Comprehensive Plan and Regional Approach discourage
the construction of new towers on ridge line lands designated as Agri-
cultural or Conservation, precisely the type of land in question here.
Third, the Regional Approach disfavors the use of lattice towers such
as that proposed by U.S. Cellular, encouraging instead the construc-
tion of monopole stealth towers.
Additionally, there was evidence in the record indicating that mul-
tiple, shorter towers would provide a viable alternative to the 240-foot
tower. This option was supported by the Tradewinds report, which
noted that multiple tower sites would provide comparable coverage to
the proposed tower. Such an alternative would conform more closely
to the Comprehensive Plan and Regional Approach. Furthermore,
Sandy, the county zoning administrator, informed the Board that,
even if the 240-foot tower were approved, coverage gaps would still
exist, resulting in the need for additional towers anyway.
We believe that the aforementioned evidence regarding the pro-
posed tower's inconsistencies with Montgomery County zoning ordi-
nances and guidelines provides ample support for a reasonable
legislator's decision to deny the application for U.S. Cellular's pro-
posed tower. The evidence presented to the Board certainly amounts
to more than a mere scintilla. Accordingly, we conclude that the
Board's denial of the 240-foot tower application was based upon sub-
stantial evidence in a written record.8
____________________________________________________________
8
U.S. Cellular argues that the Board's decision cannot be justified in
light of the scientific evidence that was presented in support of the pro-
14
III.
The district court granted summary judgment to U.S. Cellular on
its claim that the Board's actions were arbitrary and unreasonable
under Virginia law. The court reasoned that because the Board's deci-
sion was based on aesthetic considerations only, in violation of Board
of Supervisors of James City County v. Rowe, 216 Va. 128 (1975), it
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posed tower and the "virtually unanimous community support" for the
tower. U.S. Cellular's arguments are without merit. While there is no
question that this evidence strongly supports U.S. Cellular's application
and would in its own right qualify as substantial evidence, the Board may
still deny the application based upon other evidence, as long as it
amounts to more than a "mere scintilla." See AT&T Wireless PCS, Inc.
v. City Council of Virginia Beach, 155 F.3d 423, 431 (explaining that
although there was more than sufficient evidence for the city council to
approve the application for a telecommunications tower, which may even
have amounted to a preponderance of the evidence, the council's rejec-
tion of the application was nevertheless supported by substantial evi-
dence). Upon review of the evidence relied upon by U.S. Cellular, we
cannot say that it is so overwhelming as to wholly obliterate the evidenti-
ary value of the proposed tower's incompatibility with local zoning law,
which as we have determined was properly relied upon by the Board.
Moreover, public opinion does not mandate local zoning decisions
under the TCA. To be sure, we have held that widespread public opposi-
tion to the construction of a telecommunications tower provides substan-
tial evidence to support a local government's denial of a permit. See
AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d
423, 431 (4th Cir. 1998). See also Petersburg Cellular P'ship v. Board
of Supervisors of Nottoway County, 205 F.3d 688, 695-696 (4th Cir.
2000)(noting that public opposition, if based upon rational concerns, pro-
vides substantial evidence to deny a permit); 360o Communications Co.
v. Board of Supervisors of Albemarle County, 211 F.3d 79, 83-84 (4th
Cir. 2000)(determining that public opposition was a factor that contrib-
uted to a finding of substantial evidence); AT&T Wireless PCS, Inc. v.
Winston-Salem Zoning Board of Adjustment, 172 F.3d 307, 315-316 (4th
Cir. 1999)(same). In Virginia Beach, for example, we determined that
widespread public opposition to the proposed towers, based upon their
visual impact on the surrounding residential area, provided the city coun-
cil with substantial evidence to reject the application. We did not hold in
Virginia Beach, however, nor have we ever held, that public opinion
mandated that the city council reject the application.
15
acted unreasonably. Because we have determined that the Board's
decision did not run afoul of Rowe, we reverse the judgment granted
in favor of U.S. Cellular on its claim under Virginia law.
IV.
For the foregoing reasons, we reverse the judgment of the district
court on the subsection (B)(iii) and Virginia law claims and order
summary judgment in favor of the Board. We affirm the judgment of
the district court in favor of the Board on the subsection (B)(i)(II)
claim.
REVERSED IN PART AND AFFIRMED IN PART
16