Zoning – Public Utilities – Cell Phone Tower – Conditional Use Permit

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T-Mobile Northeast LLC v. City Council of Newport News, Va. (Lawyers Weekly No. 12-01-0367, 17 pp.) (Diaz, J.) No. 11-1293, March 26, 2012; USDC at Newport News, Va. (Smith, J.) 4^th Cir. Full-text opinion.

Holding: The 4^th Circuit upholds an injunction directing that T-Mobile’s application be granted for a conditional use permit to allow construction of a wireless communication tower at an elementary school in Newport News, Va.

After the city council denied T-Mobile’s application, T-Mobile filed suit alleging violations of Section 704 of the Telecommunications Act of 1996. The complaint alleged the denial was not supported by substantial evidence and was unlawfully based on concerns of potential health effects from emissions. The district court adopted the magistrate judge’s report and recommendation, which found that “after removing any discussion of health effects from the record,” the city’s denial was not based on substantial evidence.

We do not sit as an appellate zoning board making a de novo determination of whether the application satisfied the relevant municipal requirements. The Act instead directs that we determine whether substantial evidence supports the city’s decision to deny a request. Thus, we ask only whether the denial – not the application itself – is supported by substantial evidence.

In making this assessment, we look to the applicable zoning ordinance to determine whether the reasons for the city’s decision are contemplated therein. Here, the court concluded the meager opposition to the permit did not amount to substantial evidence. We are satisfied that the district court thoroughly reviewed the evidence supporting the permit and did not impermissibly shift the burden to the city and its citizens.

We disagree with the city’s assertion that the district court erred in finding that the city’s denial of the application is not supported by substantial evidence.

Looking to the record in this case, we first note the absence of repeated and widespread opposition to the tower. Three residents spoke at the hearing in opposition to the application and another sent an email voicing his opposition. The city does not contend the anemic turnout was attributable to lack of information in the community. To the contrary, as the mayor noted at the hearing, the city provided ample public notice of T-Mobile’s application, as did the school board and the planning commission. While we eschew any bright line as to the number of residents who must voice their opposition, we agree with the district court that the extent of the opposition certainly is relevant in assessing whether substantial evidence supports a denial.

Although citizens need not come armed with professional knowledge or expert reports to present testimony as to property values, we – like the district court – ascribe little value to the vague and uncorroborated concerns about property values expressed in this case. We also afford two passing comments about the tower’s aesthetic impact little weight in our substantial evidence analysis. We also agree with the district court that concern that workers servicing the tower might pose a risk to the students was speculative and not something that a reasonable legislator would consider.

Finally, the Act is clear that potential health effects flowing from the grant of a conditional use permit have no place in a decision to deny a permit, nor may we consider them on appeal. Once these concerns are excised from the competent evidence, we find the record does not support the city’s denial of the application.

Judgment for T-Mobile affirmed.