360° Communications Co. v. Board of Supervisors of Albemarle County , 211 F.3d 79 ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
360o COMMUNICATIONS COMPANY OF
CHARLOTTESVILLE,
Plaintiff-Appellee,
v.
THE BOARD OF SUPERVISORS OF
ALBEMARLE COUNTY,
Defendant-Appellant.
KEVIN DUDLEY; BARBARA DUDLEY;
CARR DORMAN; MARGARET DORMAN;
JACOB LOESER; CONNIE LOESER;
STEPHEN INNES; BILL O. MAHONE;
IRMA MAHONE; MARYANNE
RODEHEAVER; STEPHEN THORNTON; M.
No. 99-1816
BIRD WOODS; T. K. WOODS, JR.;
DAVID VANROIJEN; JAMES MCILNAY;
MOLLY MCILNAY; JULIA SCHNEIDER;
MITCH MCCULLOUGH; EDWARD L.
AYERS; ABBY AYERS; PIEDMONT
ENVIRONMENTAL COUNCIL;
CITIZENS FOR FAUQUIER COUNTY;
SCENIC AMERICA; LOCAL
GOVERNMENT ATTORNEYS
ASSOCIATION OF VIRGINIA,
INCORPORATED; VIRGINIA
ASSOCIATION OF COUNTIES; VIRGINIA
MUNICIPAL LEAGUE; APPALACHIAN
TRAIL CONFERENCE,
Amici Curiae.
360o COMMUNICATIONS COMPANY OF
CHARLOTTESVILLE,
Plaintiff-Appellant,
v.
THE BOARD OF SUPERVISORS OF
ALBEMARLE COUNTY,
Defendant-Appellee.
KEVIN DUDLEY; BARBARA DUDLEY;
CARR DORMAN; MARGARET DORMAN;
JACOB LOESER; CONNIE LOESER;
STEPHEN INNES; BILL O. MAHONE;
IRMA MAHONE; MARYANNE
RODEHEAVER; STEPHEN THORNTON; M.
No. 99-1897
BIRD WOODS; T. K. WOODS, JR.;
DAVID VANROIJEN; JAMES MCILNAY;
MOLLY MCILNAY; JULIA SCHNEIDER;
MITCH MCCULLOUGH; EDWARD L.
AYERS; ABBY AYERS; PIEDMONT
ENVIRONMENTAL COUNCIL;
CITIZENS FOR FAUQUIER COUNTY;
SCENIC AMERICA; LOCAL
GOVERNMENT ATTORNEYS
ASSOCIATION OF VIRGINIA,
INCORPORATED; VIRGINIA
ASSOCIATION OF COUNTIES; VIRGINIA
MUNICIPAL LEAGUE; APPALACHIAN
TRAIL CONFERENCE,
Amici Curiae.
Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-98-99-C)
Argued: January 24, 2000
Decided: March 15, 2000
2
Before NIEMEYER, Circuit Judge,
Deborah K. CHASANOW, United States District Judge
for the District of Maryland, sitting by designation,
and Andre M. DAVIS, United States District Judge
for the District of Maryland, sitting by designation.
_________________________________________________________________
Reversed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Chasanow and Judge Davis joined.
_________________________________________________________________
COUNSEL
ARGUED: Larry Wade Davis, OFFICE OF THE COUNTY
ATTORNEY, Charlottesville, Virginia, for Appellant. Melvin Earl
Gibson, Jr., TREMBLAY & SMITH, L.L.P., Charlottesville, Vir-
ginia, for Appellee. ON BRIEF: Gustav Gregory Kamptner, OFFICE
OF THE COUNTY ATTORNEY, Charlottesville, Virginia, for
Appellant. Patricia D. McGraw, TREMBLAY & SMITH, L.L.P.,
Charlottesville, Virginia, for Appellee. George R. St. John,
ST. JOHN, BOWLING & LAWRENCE, L.L.P., Charlottesville, Vir-
ginia, for Amici Curiae Dudley, et al. Kathleen Rogers, PIEDMONT
ENVIRONMENTAL COUNCIL, Warrenton, Virginia, for Amicus
Curiae Council, et al. William Malone, John L. Knight, Henrico
County Attorney, Sterling Rives, Hanover County Attorney, C. Flippo
Hicks, Mark K. Flynn, MILLER & VAN EATON, P.L.L.C., Wash-
ington, D.C., for Amici Curiae Local Government Attorneys, et al.
Andrew T. Hyman, Harpers Ferry, West Virginia; Charles W. Sloan,
SLOAN & SWEDISH, Vienna, Virginia, for Amicus Curiae Appala-
chian Trail Conference.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Applying the Telecommunications Act of 1996, the district court
entered an injunction, on the motion of 360o Communications, Inc.,
3
directing the Albemarle County (Virginia) Board of Supervisors to
issue a special-use permit to 360o Communications for the construc-
tion of a wireless communications tower on Dudley Mountain in
Albemarle County. While the court concluded that the Board's denial
of the permit application was supported by substantial evidence -- a
conclusion with which we agree -- it held that the denial of the per-
mit had "the effect of prohibiting the provision of personal wireless
services" to the County, in violation of § 704(a)(7)(B)(i)(II) of the
Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(i)(II). For the rea-
sons that follow, we reverse.
I
360o Communications, Inc., a licensed provider of wireless tele-
phone services, submitted an application to the Albemarle County
(Virginia) Board of Supervisors for a special-use permit to erect one
or more telecommunications towers near the top of Dudley Mountain
in Albemarle County. 360o Communications maintained that the
southern part of the County was not being provided adequate wireless
service and that there were gaps in coverage of the area. Following
a meeting with the staff of the Albemarle County Planning Commis-
sion, 360o Communications refined its application to request approval
of only one 100-foot tower on the ridgeline of Dudley Mountain that
would extend approximately 40-50 feet above the tree canopy. Dud-
ley Mountain, which rises approximately 1550 feet above sea level,
is located between U.S. Route 29 on the west and Virginia Route 706
on the east, south of Charlottesville, Virginia. 360 o Communications
indicated that in constructing the tower, it would use a lattice design,
painted medium-gray, and antenna mounts that would minimize the
tower's profile.
At the Albemarle County Planning Commission's meeting on June
2, 1998, during which 13 citizens spoke in opposition to the tower,
the planning staff recommended that the Commission deny 360o
Communications' application. The staff noted that the proposed tower
was inconsistent with Albemarle County's Comprehensive Plan for
the development of the County. It also noted that the proposed tower
would violate two provisions of the County's zoning ordinance.
Finally, the staff noted that because 360o Communications had not
demonstrated the lack of other feasible locations for the tower, denial
4
of the application would not have the effect of prohibiting wireless
service generally. The Planning Commission unanimously recom-
mended denial of the application to the County Board of Supervisors
and scheduled a public hearing before the Board of Supervisors for
August 12, 1998.
At the hearing before the Board of Supervisors, 360 o Communica-
tions presented evidence that it had been receiving about 20 calls per
week complaining about inadequate wireless service in the Dudley
Mountain area and that the proposed site on Dudley Mountain was the
optimal location from which to provide the service. It presented evi-
dence that because of the density of the forest, the tower needed to
be 40 feet above the tree canopy in order to provide effective cover-
age. 360o Communications claimed that the proposed tower would be
as invisible as a tower could be and still perform its intended function,
and it provided photographs of the mountain that depicted a barely
visible red balloon, five feet in diameter, to identify the proposed
location of the tower. It assured the Board that it had met the planning
staff's conditions for the access road to the site. 360o Communica-
tions' witnesses discussed alternatives to the single tower, including
the use of six 100-foot towers at sites below the mountain ridgeline
to cover the areas both to the east and west sides of the mountain or
the use of 20 to 24 60-foot poles along the sides of the roads near
Dudley Mountain.
Ten citizens spoke against the proposed tower, generally voicing
concerns about its visibility, its inconsistency with the community's
environmental preservation goals, and its impact on the character of
the area. The only citizen who supported the application was the
owner of the land on which the tower would be erected. Opposing cit-
izens testified that they already enjoyed adequate cellular coverage in
the area of the mountain and that, in any event, satellite communica-
tions would replace cellular service in the near future. Citizens com-
plained about potential erosion, and one citizen, whose property was
contiguous to that on which the tower would be located, testified that
he placed his land in a conservation easement "just so this sort of
thing would not happen." One citizen presented a petition opposing
the tower signed by 40 people, and another presented a slide show
showing pictures of the mountain.
5
The Board of Supervisors denied the application by unanimous
vote. It determined that the proposed tower would conflict with the
County's Comprehensive Plan and Open Space Plan, which encour-
aged the protection of mountains and rural areas and discouraged
activities that would alter the continuity of the County's mountain
ridgelines or disrupt the natural balance of the soils, slope, and vege-
tation of mountainous areas. It concluded that the tower would also
conflict with guidelines recommended for mountain resource areas, of
which the proposed site was a part. The Board also determined that
the proposed tower would conflict with the Albemarle County Zoning
Ordinance in that (1) the proposed tower would be only 40 feet from
the nearest property line despite its height of 100 feet; (2) its access
road would disturb steep, critical slopes; (3) the tower would change
the rural character of the district due to its visibility on a wooded,
sparsely populated mountain ridgeline; and (4) the tower was detri-
mental to the creation of a "convenient, attractive and harmonious
community." The Board concluded that alternatives were available
and that its decision would not prohibit wireless communication ser-
vice in Albemarle County. It noted that since 1990, it had granted 18
permits for wireless communications towers and denied only 4.
360o Communications commenced this action under § 704(a)(7)
(B)(v) of the Telecommunications Act, alleging that the Board of
Supervisors' decision was not supported by substantial evidence, in
violation of § 704(a)(7)(B)(iii) of the Act, and that the decision had
the effect of prohibiting the provision of personal wireless services,
in violation of § 704(a)(7)(B)(i)(II). On cross-motions for summary
judgment, the district court concluded that substantial evidence sup-
ported the Board of Supervisors' denial of the application but that the
denial of the application nevertheless had the effect of prohibiting the
provision of wireless services, in violation of the Act. The court con-
cluded that (1) the Board of Supervisors applied its zoning ordinance
and its Comprehensive Plan in a manner that prevented any applicant
from obtaining a permit to provide wireless services in areas geo-
graphically similar to Dudley Mountain, and (2) 360 o Communica-
tions' evidence demonstrated that there was no reasonable alternative
to mountaintop towers in the mountainous areas such as that south of
Charlottesville. Instead of remanding the case to the Board, the court
issued an injunction ordering the Board to grant the permit within 45
days because of "the Board's hostility toward the construction of
6
wireless towers on mountains." 360o Communications Co. v. Board of
Supervisors of Albemarle County, 50 F. Supp.2d 551, 564 (W.D. Va.
1999). These appeals followed.
II
Section 704(a) of the Telecommunications Act, which preserves
the authority of state and local governments to regulate the placement
and construction of wireless service towers, nevertheless limits the
manner in which state and local governments may exercise that
authority, providing that state and local governments may not deny
construction of a wireless service facility unless the denial is "in writ-
ing and supported by substantial evidence contained in the written
record." 47 U.S.C. § 332(c)(7)(B)(iii). We have interpreted the term
"substantial evidence" to mean "such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion." AT&T
Wireless PCS, Inc. v. City Council of the City of Virginia Beach, 155
F.3d 423, 430 (4th Cir. 1998) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477 (1951)). It requires more than a mere scin-
tilla but less than a preponderance. See NLRB v. Grand Canyon Min-
ing Co., 116 F.3d 1039, 1044 (4th Cir. 1997). In Virginia, the grant
or denial of a conditional-use permit is a legislative act, as is the
adoption of a zoning regulation. See County Bd. of Arlington County
v. Bratic, 377 S.E.2d 368, 370 (Va. 1989); City Council of Virginia
Beach of Harrell, 372 S.E.2d 139, 141 (Va. 1988). In Virginia Beach,
we stated that when reviewing the decision of a local elected body,
we take "a reasonable mind" to refer to the mind of a reasonable legis-
lator. See 155 F.3d at 430. When reviewing legislative acts to deter-
mine whether they are supported by substantial evidence, we have
noted that "it is not only proper but even expected that a legislature
and its members will consider the views of their constituents to be
particularly compelling forms of evidence." Virginia Beach, 155 F.3d
at 430.
In Virginia Beach, we concluded that the substantial opposition
from local residents to an application for two cellular towers based on
their rational fears that the towers would damage the character of their
residentially zoned neighborhood, which contained no significant
commercial development, no commercial antenna towers, and no
above-ground power lines, amounted to "substantial evidence" and
7
was therefore a lawful basis for the city council's decision to deny a
permit for the towers. See 155 F.3d at 431. Similarly, in AT&T Wire-
less PCS, Inc. v. Winston-Salem Zoning Board of Adjustment, 172
F.3d 307, 315 (4th Cir. 1999), we held that the Winston-Salem Zon-
ing Board had "substantial evidence" to deny a special-use permit for
the construction of a 148-foot antenna tower near a historical house
that was surrounded by low-density, single-home, residential property
with no commercial property nearby. In Winston-Salem, approxi-
mately 150 local residents objected to the tower, either in person or
by petition, because it would change the character of the neighbor-
hood. See id. at 315-16. In contrast, in Petersburg Cellular Partner-
ship v. Board of Supervisors of Nottoway County, we held that a
county board decision, which was based upon "the irrational concerns
of a few constituents," was not supported by"substantial evidence."
No. 99-1055, ___ F.3d ___, 2000 WL 253605, at *___ (4th Cir. Mar.
7, 2000).
Upon judicial review of a local board's denial of a siting permit
application, courts must uphold the board's action if it has "substan-
tial support in the record as a whole." Virginia Beach, 155 F.3d at 430(quoting Grand Canyon, 116 F.3d at 1044). Courts are not free to
substitute their own judgment for that of the board, even if they would
decide the matter differently as an original matter. See id. We review
the district court's judgment in such cases de novo. See Pleasant Val-
ley Hosp. v. Shalala, 32 F.3d 67, 69 (4th Cir. 1994).
In the record made before the Board of Supervisors, it is undis-
puted that the proposed tower would rise from the ridgeline of Dudley
Mountain and extend 40 to 50 feet above the tree canopy. Except for
the property owner who had intended to lease the property to 360o
Communications to build the tower, the citizens of Albemarle County
spoke unanimously in opposition to the tower siting. Thirteen spoke
in opposition at the public hearing before the Planning Commission
on June 2, 1998, giving varying reasons. Similarly, at the meeting of
the Board of Supervisors on August 12, 1998, ten citizens spoke in
opposition, objecting to the tower's visibility, its inconsistency with
environmental preservation goals, and its impact on the character of
the area. Also, 40 citizens signed a petition opposing the proposed sit-
ing of the tower.
8
In addition to this virtually unanimous citizen opposition, the
Board of Supervisors had evidence before it that the proposed tower
would be inconsistent with the Comprehensive Plan, the Open Space
Plan, and the County's Zoning Ordinance. The Comprehensive Plan
and Open Space Plan note that "any serious modification of the natu-
ral ridge lines in the County will modify the visual character of an
entire area," that "activities which alter the continuity of the ridge line
. . . should be discouraged," and that "issues related to soil erosion
[and] surface water runoff" are amplified in mountainous areas. The
Zoning Ordinance provides that the Board must find that the proposed
use
will not be of substantial detriment to adjacent property, that
the character of the district will not be changed thereby, and
that such use will be in harmony with the purpose and intent
of [the zoning] ordinance, with the uses permitted by right
in the district, with additional regulations provided in [the]
ordinance, and with the public health, safety and general
welfare.
Albemarle County Zoning Ordinance § 31.2.4.1. Additionally,
County Zoning Ordinance § 4.10.3.1 provides that "no structure shall
be located closer in distance to any lot line than the height of the
structure." It was undisputed that the proposed tower was to be 100
feet tall and was sited 40 feet from the nearest lot line.
To be sure, 360o Communications presented evidence that the
tower would be constructed to stand with minimal visibility and that
the site would be optimal for providing service in southern Albemarle
County, where gaps in service existed. It assured the Board of Super-
visors that it would address the planning staff's objections to the
access road and that installation of the tower would be by air (helicop-
ter) rather than by road. It also requested a variance of the Zoning
Ordinance's setback requirement. But just as 360 o Communications'
position was a reasonable one, so also was the position of the citizens
of the community. At bottom, these issues, as to which conflicting
evidence was presented, are of the type that zoning boards are typi-
cally qualified to resolve.
Upon our view of the record, we conclude that the decision of the
Albemarle County Board of Supervisors to deny 360 o Communica-
9
tions' application for a special-use permit had substantial support in
the record as a whole, in satisfaction of 47 U.S.C.§ 332(c)(7)(B)(iii).
See Winston-Salem, 172 F.3d at 316-17; Virginia Beach, 155 F.3d at
431.
III
Although the district court correctly found that the Board of Super-
visors' decision to deny 360o Communications' permit was supported
by substantial evidence, the court concluded that the denial of the per-
mit had "the effect of prohibiting the provision of personal wireless
services," in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). In reaching
this conclusion, the court determined that 360o Communications had
no "reasonable alternative" to a mountaintop site. 360o Communica-
tions Co. v. Board of Supervisors of Albemarle County, 50 F. Supp.2d
at 563. In response to the evidence in the record that six towers at
lower elevations on Dudley Mountain or 20 to 24 road-side towers
could provide adequate service, the court agreed that these and other
"exceptional alternatives" might be available, but they were not "rea-
sonable." Id. The court said, in order to be "reasonable,"
an alternative . . . must, at a minimum, provide a high level
of wireless service, its cost must be within or close to the
industry-wide norm for establishing new service under simi-
lar circumstances, it must employ commonly used technol-
ogy, and it must be logistically feasible.
Id. The court also concluded that the Board of Supervisors was hostile
to the construction of wireless towers on mountains and that a remand
"would serve no useful purpose." Id. at 564. Accordingly, it entered
an order enjoining the Board of Supervisors to "issue any required
permits within 45 days." Id. at 552.
The Board of Supervisors challenges the district court's conclu-
sions based both on the court's interpretation of the evidence and on
the legal standard it applied. The Board points to the fact that reason-
able alternatives did exist and that the Board had a record of granting
permits for communications towers, having denied only a few. In
challenging the legal test devised by the district court, the Board
states that the test would "enable[ ] wireless service providers to dis-
10
regard local zoning authority merely by proposing towers that will
provide the greatest coverage in a single tower by, for example, locat-
ing on a mountain top or using a very tall tower." In addition, the
Board argues that there is no evidence in the record to suggest that
the cost to erect one or more towers on alternative sites would be pro-
hibitive or that it would be difficult for 360o Communications to
obtain acceptable alternative sites.
360o Communications urges approval of the district court's conclu-
sion, arguing that in the circumstances, the Board of Supervisors'
denial of the special-use permit amounts to a "general ban or morato-
rium." It notes that because of the topography in Albemarle County,
the placement of "some towers on some mountaintops" is necessary
to provide "effective [wireless] coverage." (Emphasis in original).
The issue thus presented is how properly to apply 47 U.S.C.
§ 332(c)(7)(B)(i)(II).
Congress enacted the Telecommunications Act "to promote compe-
tition and reduce regulation in order to secure lower prices and higher
quality services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications technol-
ogies." Pub. L. No. 104-104, 110 Stat. 56, 56 (1996); see also H.R.
Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996
U.S.C.C.A.N. 124, 124 (explaining that the purpose of the Telecom-
munications Act is "to provide for a pro-competitive, deregulatory
national policy framework designed to accelerate rapidly private sec-
tor deployment of advanced telecommunications and information
technologies and services . . . by opening all telecommunications mar-
kets to competition"). While Congress sought to limit the ability of
state and local governments to frustrate the Act's national purpose of
facilitating the growth of wireless telecommunications, Congress also
intended to preserve state and local control over the siting of towers
and other facilities that provide wireless services. It struck a balance
between the national interest in facilitating the growth of telecommu-
nications and the local interest in making zoning decisions with its
enactment of § 704(a) of the Telecommunications Act, 47 U.S.C.
§ 332(c). Under that section, authority to regulate siting and construc-
tion of telecommunications towers is preserved in state and local gov-
ernments, see 47 U.S.C. § 332(c)(7)(A), but these decisions are
subject to certain limitations, see 47 U.S.C. § 332(c)(7)(B). These
11
limitations include prohibitions against discriminating among wireless
service providers and against banning personal wireless services alto-
gether. See 47 U.S.C. § 332(c)(7)(B)(i). Section 332(c)(7)(B) also
requires local governments to act on permit applications "within a
reasonable period of time" and not to deny applications except "in
writing," and then only when "supported by substantial evidence con-
tained in a written record." 47 U.S.C. § 332(c)(7)(B)(ii) & (iii).
Finally, § 332(c)(7)(B) prohibits local governments from taking into
consideration the environmental effects of radio frequency emissions.
See 47 U.S.C. § 332(c)(7)(B)(iv).
The particular limitation at issue in this case reads in pertinent part:
"The [local] regulation of the placement . . . of personal wireless ser-
vice facilities . . . shall not prohibit or have the effect of prohibiting
the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)
(i)(II) (hereinafter sometimes, "(B)(i)(II)"). Stated another way, the
provision instructs that siting decisions may not be employed to deny
wireless telecommunications service. This does not mean that the
denial of a permit for a particular site amounts to the denial of
wireless services because services can be effected from numerous
sites in various combinations, sometimes not even within the area to
be served. It follows, therefore, that case-by-case denials of permits
for particular sites cannot, without more, be construed as a denial of
wireless services. See AT&T Wireless PCS v. City Council of Virginia
Beach, 155 F.3d 423, 428-29 (4th Cir. 1998).
Certainly, local policies or general bans against any siting of wire-
less service facilities would violate (B)(i)(II). See Virginia Beach, 155
F.3d at 428; see also Town of Amherst v. Omnipoint Communications
Enterprises, Inc., 173 F.3d 9, 14 (1st Cir. 1999). Moreover, indica-
tions by a local government that repeated individual applications will
be denied because of a generalized hostility to wireless services could
also violate (B)(i)(II). But whether a single denial of a site permit
could ever amount in effect to the prohibition of wireless services is
a more difficult question, and it is the question with which we are
here presented. Because the simple fact of denial with respect to a
particular site is not enough, there must be something more, taken
from the circumstances of the particular application or from the pro-
cedure for processing the application, that produces the "effect" of
prohibiting wireless services.
12
Thus, conceptually, if wireless service could feasibly be provided
from only one site, a denial of a permit for a facility at that site could
amount to a prohibition of wireless services, in violation of (B)(i)(II).
See Amherst, 173 F.3d at 14. But such a hypothetical seems unlikely
in the real world, although gradations of the hypothetical are conceiv-
able.
Moreover, because (B)(i)(II) is aimed at facilitating the develop-
ment of wireless services, to evaluate whether that provision has been
violated, we must determine what level of services is protected by
(B)(i)(II). The Act obviously cannot require that wireless services
provide 100% coverage. In recognition of this reality, federal regula-
tions contemplate the existence of dead spots, defined as "small areas
within a service area where the field strength is lower than the mini-
mum level for reliable service." 47 C.F.R. § 22.99. And for the pur-
pose of calculating the cellular geographic service area, the
regulations provide that "cellular service is considered to be provided
in all areas, including ``dead spots.'" 47 C.F.R. § 22.911(b); see also
Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 643-44 (2d Cir. 1999)
(recognizing that denials of applications to provide service to fill cov-
erage gaps that are limited in number or size generally will not
amount to a prohibition of service). In Sprint Spectrum, the Second
Circuit, after carefully analyzing the various relevant provisions of the
Telecommunications Act, concluded that the "services" protected by
(B)(i)(II) are those that enable "mobile, handheld telephones to reach
a cell site that provides access to a land-line exchange and allows
phone calls to be made to and from the national telephone network"
without significant gaps of coverage. Id. at 641, 643-44.
Concluding that a single denial could, in certain circumstances,
violate (B)(i)(II), the Second and Third Circuits have adopted an
interpretation of (B)(i)(II) under which the denial of a permit for a site
that is "the least intrusive means to close a significant gap in service"
would amount to a denial of wireless services in violation of that sec-
tion. See APT Pittsburgh Ltd. Partnership v. Penn Township, 196
F.3d 469, 480 (3d Cir. 1999); Sprint Spectrum , 176 F.3d at 643; see
also Cellular Telephone Co. v. Zoning Bd. of Adjustment of the Bor-
ough of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir. 1999). This interpretive
rule effectively creates a presumption, shifting the burden of produc-
tion to the local government to explain its reason for denying such an
13
application. But, as an interpretation of the Telecommunications Act,
we believe this rule reads too much into the Act, unduly limiting what
is essentially a fact-bound inquiry. A community could rationally
reject the least intrusive proposal in favor of a more intrusive proposal
that provides better service or that better promotes commercial goals
of the community.
Even if we were to apply the rule formulated by the Second and
Third Circuits, determinations about what constitutes the "least intru-
sive means" and "a significant gap" in services, would, we believe,
quickly devolve into the broader inquiry indicated by the language of
the statute: "Does the denial of a permit for a particular site have the
effect of prohibiting wireless services?" We believe that this statutory
question requires no additional formulation and can best be answered
through the case-by-case analysis that the Act anticipates. See
Virginia Beach, 155 F.3d at 428-29.
Accordingly, it is clear that the test devised by the district court
reads far more into (B)(i)(II) than is written in the statute. The district
court erroneously concluded that the denial of a permit for a particular
site amounts to a prohibition of wireless service if the provider shows
that it cannot through another site provide "a high level of wireless
service" at a cost "within or close to the industry wide norm for estab-
lishing new service." 360o Communications, 50 F. Supp.2d at 563.
In the case before us, genuine factual disputes exist about whether
there is an absence of service in the southern part of Albemarle
County. If we assume that significant gaps are determined to exist,1
there remains the larger, statutory question of whether 360o Commu-
_________________________________________________________________
1 Obviously, if service is already provided in an area, it would be diffi-
cult to violate (B)(i)(II), which addresses only a prohibition of the provi-
sion of service. See Sprint Spectrum, 176 F.3d at 643. And, as we have
noted, "service" cannot be construed to require 100% coverage. But we
need not reach the question of whether poor service or significant gaps
in service in Albemarle County could amount to an absence of service
because we have concluded that even if there is an absence of service,
360o Communications has not met its heavy burden under (B)(i)(II) to
demonstrate that denial of the permit in this case amounts to a prohibi-
tion of the provision of service.
14
nications has met the "heavy burden" of demonstrating that denial of
its application for the one particular site is tantamount to a prohibition
of service. See Amherst, 173 F.3d at 14 ("[T]he burden for the carrier
invoking this provision is a heavy one: to show from language or cir-
cumstances 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 even to try"). 360o Communications' own testimony acknowl-
edges alternatives involving six towers located lower on Dudley
Mountain or 20-24 towers along the highway, and surely, these are
not all of the possibilities. The record contains little evidence about
the feasibility of any alternatives.
Not only has 360o Communications failed to meet its heavy burden
in demonstrating that the Board of Supervisors' denial of a permit for
a particular site amounts to a general prohibition of service, but the
Board of Supervisors has also provided affirmative evidence to the
contrary. It demonstrated that it has approved 18 applications for
wireless service facilities, including several from 360o Communica-
tions and a few for towers in mountain regions.
In summary, we conclude that the Board of Supervisors' decision
to deny 360o Communications' application for a special permit to
install a tower on the ridgeline of Dudley Mountain is supported by
substantial evidence in the record. We also conclude that there is
insufficient evidence in the record from which to conclude that the
Board's denial of this single permit had the effect of "prohibiting the
provision of personal wireless services," in violation of 47 U.S.C.
§ 332(c)(7)(B)(i)(II). Accordingly, the judgment of the district court
is
REVERSED.
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