Petersburg Cellular Partnership, D/B/A 360o Communications Company, United States of America, Intervenor v. Board of Supervisors of Nottoway County ( 2000 )

WIDENER, Circuit Judge,

concurring:

I concur in the result and in the per curiam opinion of the panel, but I do not concur in the opinion of either Judge Niemeyer or Judge King. For ease of reference I may call them the factual majority-

In my opinion, both the district court and the factual majority misconstrue the statute at issue in this appeal, 47 U.S.C. § 332(c)(7), and its purpose to preserve local zoning authority in the area of placement of personal wireless service facilities.

Plainly stated, the rule for review by the federal courts in such cases as this should be that the placement of personal wireless facilities is, in nearly all cases, a matter of State or local government land use laws except in the limited circumstances set forth in 47 U.S.C. § 332(c)(7). Those limited circumstances are: the local land use law shall not unreasonably discriminate among providers of functionally equivalent services and shall not prohibit or have the effect of prohibiting the provision of personal wireless services, (B)(i)(i-ii); the State or local government shall act on any request with respect to such facilities within a reasonable period of time, (B)(ii); a decision of a State or local government with respect to placement shall be in writing and supported by substantial evidence contained in a written record, (B)(iii); and no State or local government may regulate the placement of such facilities on the basis of environmental effects of radio frequency emissions if such emissions comply with the Commission’s regulations, (B)(iv).

The substantial evidence requirement element in the statute just as plainly means substantial evidence to support the decision of the State or local government authority under state law. So, if a local law requires or permits a personal wireless facility to be located at any given place and that place is in accordance with local land use law, the federal statute, § 332(c)(7), protects the decision of the local authority with respect to placement unless that decision is contrary to one of the limitations mentioned just above.

In my opinion, the legislative history and a proper construction of 47 U.S.C. § 332(c)(7) support the Board of Supervisors’ decision to deny Petersburg Cellular’s application for a conditional use permit. Additionally, I believe that the record contains substantial evidence to support the Board of Supervisors’ decision under our precedent, as well as a correct construction of the statute, and that the district court and the majority erred in concluding otherwise. However, I concur in the judgment of the court that the district court’s order be vacated but do not join in the opinion to reach the constitutional issue. See Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 668, 69 S.Ct. 1264, 93 L.Ed. 1613 (1949) (Burton, J., concurring).

Section 332(c)(7) of Title 47 is titled “[preservation of local zoning authority” and states in relevant part:

Except as provided in this paragraph, nothing, in this Act [ ] shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

47 U.S.C. § 332(c)(7)(A) (emphasis added). The legislative history of this section clearly supports State and local governments’ authority over siting decisions for personal wireless towers, like the Board of Supervisors’ July 16, 1998 decision to deny Peters-burg Cellular’s request. The legislative history provides that § 332(c)(7) was created to:

prevent[ ] Commission preemption of local and State land use decisions and preserve[ ] the authority of State and local governments over zoning and land use matters except in the limited circumstances set forth.

H.R. Conf. Rep. No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 142, 222.

Moreover, § 332(c)(7)’s legislative history contains other manifestations of Congress’s intent that local and state land use and zoning decisions be tested under local standards. For example, the legislative history points out: (1) all Commission [Federal Communications Commission] rulemaking concerning the preemption of local zoning authority should be terminated; (2) the non discrimination clause provides localities with flexibility to treat facilities as permitted under “generally applicable zoning requirements”; and (3) the reasonable time requirement for action on a zoning request application is to be within “generally applicable time frames for zoning decision[s].” H.R. Conf. Rep. No. 104-458, at 208-209, reprinted in 1996 U.S.C.C.A.N. at 222-23. Nothing in § 332(c)(7) or in its legislative history gives a federal court power to substitute its judgment for that of the local zoning authorities. While Judicial review may be sought for those decisions that fail to comply with procedural and substantive limitations, however, courts are not free to substitute their own judgment for that of the board, even if they come to a different conclusion after looking at the evidence. AT & T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 430 (4th Cir.1998). Virginia Beach also illuminates any difference between substantial evidence for a legislator and an administrative employee.

I am encouraged in my opinion by other circuits which have inquired into the legislative history. In Aegerter v. City of Dela-field, 174 F.3d 886 (7th Cir.1999), the court explained:

Nothing in the Telecommunications Act forbids local authorities from applying general and nondiscriminatory standards derived from their zoning codes, and we note that aesthetic harmony is a prominent goal underlying almost every code. By leaving most of the substantive authority to approve the location of personal wireless service facilities in the hands of state or local governments, Congress must have known that exactly the kind of decision the City of Delafield reached would occur from time to time.

174 F.3d at 891 (emphasis added).

In City of Delafield, the City exercised its authority to deny a request based on citizen opposition, despite that the new tower was to be “ ‘merely’ another two feet,” and would comply with all safety and engineering standards. 174 F.3d at 888. Air Page, one of the plaintiffs, requested a conditional use permit to enable it to replace an existing tower with a larger, more modernized tower. 174 F.3d at 888. After the City denied the request, Air Page, like Petersburg Cellular, sought to reverse the City’s decision partially based on a lack of substantial evidence argument. 174 F.3d at 889. Air Page also argued that the denial had the effect of prohibiting wireless service in the area. This court held that the acts of the City had not prohibited wireless paging service in the area. The court also held that the decision of the City was supported under State law, and, as to the whole case, decided that “[s]ome may disagree with Congress’s decision to leave so much authority in the hands of the state and local governments to affect the placement of [personal wireless service facilities]. But that is what it did when it passed the Telecommunications Act of 1996, and it is not [a federal court’s] job to second-guess that political decision.” 174 F.3d at 892.

In like vein, the First and Third Circuits have decided that the substantial evidence requirement in the federal statute is applied to the localities’ own zoning requirements. In Amherst, N.H. v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9 (1st Cir.1999), the court reversed a district court which required the Town of Amherst to issue a permit to build towers such as those involved in this case because “[t]he individual variances in special exceptions sought did not meet specific requirements of State law or the March 1997 [Amherst] ordinance.” 173 F.3d at 13. The court reasoned that substantial evidence under the federal statute at issue in this case “surely refers to the need for substantial evidence under the criteria laid down by the zoning law itself.” 173 F.3d at 14 (italics in original). The court concluded that “the substantial evidence test applies to the localities’ own zoning requirements” 173 F.3d at 16, and applied that rule. The Third Circuit, in Omni-point Corp. v. Zoning Hearing Board, applied local zoning law in affirming a district court which had required the issuance of a special exception by the Zoning Hearing Board of Pinegrove Township. 181 F.3d 403 (3d Cir.1999). It quoted and applied the rule in Amherst that “[t]he substantial evidence test applies to the localities’ own zoning requirements.” 181 F.3d at 408.

Thus, without exception, save in this circuit in the instant case, the rule in the Courts of Appeals for review in such cases is as I have stated it at the beginning of this opinion. A federal court is first to decide whether or not the local zoning law has been complied with. It should then decide whether substantial evidence supports that decision, and if the answer to both of those questions is yes, then the other prohibitions of the federal statute should be considered.

The property involved in this case is in a Conservation District, C-l, under the zoning ordinance of Nottaway County. Section 6.1 of that ordinance provides that such a district “is established to conserve ... open spaces [of a rural character] in order to facilitate: existing and future general farming operations; conservation of water and forest resources; and maintenance of a distinctly rural environment. Residential development should conform to the notion that it possesses lesser priority than the maintenance of the district’s rural environment.” Under § 6.2 there are ten permitted uses which do not include microwave relay antennas, but under § 6.3 are uses permitted by special exception. There are 14 of such uses which include No. 11, “microwave relay antennas,” the structure at issue here.

Article 16 of the zoning ordinance is entitled “SPECIAL EXCEPTIONS.” A special exception is defined as a use “that would not be appropriate generally or without restrictions throughout the zoning division or district but which, if controlled as to number, area location, or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity or general welfare.”

It is this precise zoning ordinance which we are required to review under State law by the statutes involved and the decisions of three circuits. But without even mentioning the zoning ordinance and its special exception, the district court and factual majority in this court have decided under them own standards which have yet to be formulated or explained, have not been met. That alone is sufficient error to require a remand to the district court for appropriate action, as was the case in City of Delafield, supra. We have simply passed without mention the law of every other circuit that has considered the same.

Following our precedent in Virginia Beach, I would find that the Board of Supervisors’ decision was supported by substantial evidence. Every citizen who voiced his or her opinion of Petersburg Cellular’s proposed tower expressed opposition to it.¹ The record indicates practically unanimous community opposition to the tower. Two county residents and the Blackstone Town Manager testified before the Board of Supervisors and numerous residents registered them opposition to the tower in phone calls to individual board members.² These individuals collectively expressed opposition to the tower based on a variety of reasons including: it could be a dangerous obstacle to aircraft using the local airstrip; it posed a safety hazard to local children who would be tempted to play around the tower; it threatened bodily injury and damage to personal property if it ever collapsed; and it was an eyesore. Further, the record indicates that several pilots, who use the county airstrip, directly expressed their concerns regarding the placement and height of the tower to the Blackstone Town Manager and one board member. Although the record evidence in the instant case differs in form from the evidence in Virginia Beach, it does not differ in substance. The Nottoway County residents who expressed an opinion on the tower unanimously voiced their opposition to it. The Telecommunications Act does not require a local governing body to base its decision upon a particular form of evidence or dictate a requisite number of citizens who must oppose a permit before a board can deny it. Nottoway County is a rural county with a population of 15,000 citizens dispersed throughout a large area of 315 square miles. In contrast, the City of Virginia Beach has a population of more than 400,000 densely concentrated in a smaller area of 248 square miles. A particular town or county’s geography and population will certainly affect the manner in which residents participate in a zoning process and the number of residents who participate. The district court even noted, in a Freudian slip, its opinion of the County as “a backwater area” and questioned whether the citizens’ opposition was “a fairly significant turn out given its rural population.”

The district court wrongly considered the number of residents opposing the application and wrongly discounted the citizens’ concerns as baseless, conjectural, and vague. A local legislator in a sparsely populated, rural county is justified in finding that the community opposition to a tower is more compelling than expert evidence indicating that the tower would be safely positioned. The inquiry is not whether the residents’ stated reasons for opposing the tower are in and of themselves reasonable, but whether the community’s opposition is compelling in the mind of the reasonable legislator. See Virginia Beach, 155 F.3d at 430. Local legislators are elected to represent their constituents and one would expect a representative to exercise his discretion and judgment to follow the expressed unanimous opinion of his constituents. “[W]e [should not] interpret the Act so as always to thwart average, nonexpert citizens; that is, to thwart democracy.” See Virginia Beach, 155 F.3d at 431. While the residents’ expressed and unexpressed reasons for opposing the tower are of significance, more significant is the unanimity of the opposition. Of equal significance is the refusal of Petersburg Cellular, and the willingness of the Board of Supervisors, to locate the tower elsewhere.

In conclusion, the decision made by the Board of Supervisors of Nottoway County was a written denial supported by substantial evidence in a written record. The district court’s decision and the majority’s review thereof are contrary to legislative intent because their conclusions result in a mandate to Nottoway County to place a personal wireless service tower in a place that it does not want one. It is not the court’s place to dictate zoning decisions to a locality where residents and the Board of Supervisors have concluded that the tower belongs elsewhere. Furthermore, simply determining that a requested spot for a tower is not appropriate does not have the effect of prohibiting personal wireless service in the entire area. I must come to this conclusion given that § 332(c)(7)(A) preserves “the authority of a ... local government” over “decisions regarding the placement ... of wireless service facilities” with only limited exceptions, none of which have been violated.

Because I find that the district court’s judgment should be reversed on the facts, I need not and do not reach the Constitutional question. Accordingly, I concur in the judgment of this court that the order of the district court requiring issuance of the permit be vacated.³

1 . The lessor, of course, agrees to the placement.

2 . In fact, four out of the five members of the Board of Supervisors stated that they received phone calls from constituents opposing the tower.

3 . It is well to note that the district court erred in issuing a writ of mandamus, even had relief been required. The federal mandamus statute, 28 U.S.C. § 1361, applies only to "an officer or employee of the United States or any agency thereof.” It does not apply to state officials. See AT & T Wireless PCS v. Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307, 312 n. 3 (4th Cir.1999).