PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEW CINGULAR WIRELESS PCS,
LLC, d/b/a AT&T Mobility,
Plaintiff-Appellant,
v. No. 10-2381
THE FAIRFAX COUNTY BOARD OF
SUPERVISORS,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:10-cv-00283-LMB-TRJ)
Argued: January 26, 2012
Decided: March 19, 2012
Before AGEE, DAVIS, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Davis and Judge Floyd joined. Judge
Davis wrote a separate concurring opinion.
2 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY
COUNSEL
ARGUED: Hans J. Germann, MAYER BROWN, LLP, Chi-
cago, Illinois, for Appellant. Laura Schempf Gori, COUNTY
ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellee. ON
BRIEF: David H. Cox, James N. Markels, JACKSON &
CAMPBELL, PC, Washington, D.C.; John E. Muench, Nissa
J. Imbrock, MAYER BROWN, LLP, Chicago, Illinois, for
Appellant. David P. Bobzien, County Attorney, Elizabeth
Doyle Teare, Senior Assistant County Attorney, COUNTY
ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellee.
OPINION
AGEE, Circuit Judge:
The Telecommunications Act of 1996 ("the Act") requires
that a local government’s denial of a request to place "per-
sonal wireless service facilities" be supported by substantial
evidence, and not "have the effect of prohibiting the provision
of personal wireless services." 47 U.S.C.
§§ 332(c)(7)(B)(i)(II) & 332(c)(7)(B)(iii). In this case, the
Board of Supervisors of Fairfax County, Virginia ("the
Board") rejected the application of New Cingular Wireless
("AT&T") to build an 88-foot telecommunications tower in a
residential neighborhood, a decision which AT&T later chal-
lenged in the United States District Court for the Eastern Dis-
trict of Virginia. The district court determined that substantial
evidence undergirded the Board’s decision, and that the
Board’s ruling did not effectively prohibit wireless services
under the Act. For the reasons discussed below, we affirm the
judgment of the district court.
I.
Under the applicable Fairfax County, Virginia ("the
NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 3
County") zoning ordinance, telecommunications facilities
may be located in residential zoning districts only by special
exception. See Zoning Ordinance §§ 3-304(1), 9-001;1 Va.
Code § 15.2-2286(A)(3). Where, as here, a party seeks to
build a telecommunications facility in a residential neighbor-
hood,2 it must submit a special exception application to the
Board. It is the Board’s denial of such an application that is
at issue here.3
In addition to a special exception application, a party seek-
ing to build a telecommunications tower that is not shown on
the County’s Comprehensive Plan must submit a zoning
application to the County Planning Commission. See Va.
Code § 15.2-2232. After determining whether the application
substantially conforms to the County’s Comprehensive Plan,
the Planning Commission makes a recommendation to the
Board, which can overrule the Planning Commission’s deci-
sion. Id. While the Planning Commission made a recommen-
dation that the Board approve AT&T’s zoning application in
this case, the Board did not rule on that matter, and it is not
at issue here. To provide a complete picture of the facts
underlying this dispute, however, we note below the findings
of both the Planning Commission and the Board.
AT&T, contending that it could only provide limited in-
building and in-vehicle wireless services in the County’s Fort
Hunt area, submitted a special exception application to the
1
Citations to the "Zoning Ordinance" refer to the Fairfax County, Vir-
ginia Zoning Ordinance.
2
The relevant County zoning designation for the neighborhood in which
AT&T’s proposed telecommunications facility was to be located, R-3, is
a residential neighborhood "established to provide for single family
detached dwellings . . . ; to provide for affordable dwelling unit develop-
ments; to allow other selected uses which are compatible with the low
density residential character of the district; and otherwise to implement the
stated purpose and intent of this Ordinance." Zoning Ordinance § 3-301.
3
See J.A. 509-14 (Board voting to deny Special Exception Application
2008-MV-031).
4 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY
Board and a zoning application to the Planning Commission
to determine whether its proposal substantially conformed to
the County’s Comprehensive Plan. The proposed facility,
consisting of a 15-foot tall storage shed and an 88-foot tower
disguised as a tree ("the tree monopole"), was to be erected
behind a Masonic lodge in an otherwise residential neighbor-
hood, approximately one hundred feet from nearby resi-
dences.
At a hearing on the matter, "[s]everal individuals who live
near the proposed site testified . . . in opposition to the con-
struction of the wireless tower." New Cingular Wireless PCS,
LLC d/b/a AT&T Mobility v. Fairfax Cnty. Bd. of Sup’rs, No.
10-cv-283, 2010 WL 4702370, at *1, (E.D. Va. November 10,
2010) ("New Cingular"). Despite these objections, the Plan-
ning Commission found that the proposed facility substan-
tially conformed to the Comprehensive Plan, and made a
recommendation to the Board for approval of AT&T’s appli-
cation.
Pursuant to Zoning Ordinance 9-006(3), the Board may
approve a special exception application only when the pro-
posed facility is "harmonious with" and would not "adversely
affect the use . . . of neighboring properties . . . ." Further-
more, the County’s Policy Plan, which comprises a portion of
the Comprehensive Plan, states that new telecommunications
facilities should be located "on properties that provide the
greatest opportunity to conceal the telecommunications facili-
ties," and designed to "provide[ ] the least visual impact on
residential areas. . . ." Pol. Plan Obj. 42(b) & (i), set forth in
Br. of Appellant at A10-A11.
The Board held a public hearing, and, based on its consid-
eration of community opposition and the aforementioned zon-
ing regulations, among other things, denied AT&T’s special
exception application. In its eleven-page ruling,4 the Board
4
The Board issued a written opinion outlining its findings after AT&T
filed its complaint in this action. The issue whether the Board complied
with the Act’s requirement that a decision be in writing is not at issue in
this appeal.
NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 5
described the facts upon which it based its determinations that
AT&T’s proposal did not conform to the County’s Compre-
hensive Plan or the standards for approval of a special use
exception under the zoning ordinance:
The Proposed Facility is proposed to be located . . .
at a distance of only approximately 100 feet from
two of the neighboring residences. . . . [E]xisting
vegetation on the Proposed Site is minimal. . . . On
the northern and western sides of the building, there
are concrete pads. On the eastern end of the Pro-
posed Site there are a few trees and a small, grassy
area with dense brush. Otherwise, the remainder of
the Proposed Site is paved with asphalt. . . . The Pro-
posed Facility would . . . extend 38 feet above the
closest tree. There are some existing trees located on
adjacent property . . . but those trees average only
approximately 40 feet in height. . . . The tree
monopole clearly towers above the neighboring
trees. . . . Further, the proposed supplemental vegeta-
tion would not reach a sufficient height to minimize
the visual impact of the Proposed Facility. . . . Forty-
seven members of the community signed a Petition
opposing the Proposed Site and approximately
twenty-one community members attended a meeting
to discuss their opposition to the Proposed Site.
Based on the addresses provided on the Petition and
meeting sign-in sheet, these community members
live within approximately a one-mile radius of the
Proposed Site. . . . The Board took this community
opposition into consideration as one of the many fac-
tors it considered . . . .
JA 160-66 (citations omitted).
Following the Board’s denial of the special exception appli-
cation, AT&T filed a complaint pursuant to 47 U.S.C.
§ 332(c)(7)(B)(v), alleging that the Board’s decision violated
6 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY
the Act’s substantial evidence requirement,
§ 332(c)(7)(B)(iii), and that the decision amounted to an
effective prohibition of wireless services in violation of
§ 332(c)(7)(B)(i)(II). Ruling on the parties’ cross-motions for
summary judgment, the district court held first that:
the Fairfax Board reached a reasonable decision
[under subsection (B)(iii)] to deny [AT&T’s] appli-
cation on the basis of a determination that the pro-
posed telecommunications facility was not in
harmony with the local Zoning Ordinance and the
County’s Comprehensive Plan, that community resi-
dents were understandably opposed to the construc-
tion of a telecommunications tower in the middle of
a residential area, and that the proposed . . . treepole
facility would be highly visible at the proposed site
and would depress local property values.
New Cingular, 2010 WL 4702370, at *3. Secondly, the dis-
trict court determined that, "particularly in light of evidence
of the Board’s previous approval of numerous zoning applica-
tions for telecommunications facilities, including at least three
of [AT&T’s] own telecommunications facilities in the vicinity
of the proposed site[,]" there was no violation of subsection
(B)(i)(II). Id.
AT&T filed a timely notice of appeal and we have jurisdic-
tion under 28 U.S.C. § 1291.
II.
The Court reviews de novo an award of summary judg-
ment, S.C. Green Party v. S.C. State Election Comm’n, 612
F.3d 752, 755 (4th Cir. 2010), which is appropriately granted
"if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a).
NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 7
A.
Subsection (B)(iii) of the Act, commonly termed the "sub-
stantial evidence requirement," mandates that "[a]ny decision
by a State or local government or instrumentality thereof to
deny a request to place, construct, or modify personal wireless
service facilities shall be . . . supported by substantial evi-
dence. . . ." 47 U.S.C. § 332(c)(7)(B)(iii). We first consider
AT&T’s contention that the Board’s decision failed to comply
with the substantial evidence requirement.
In reviewing a decision of a zoning board, we are "not free
to substitute [our] judgment" for that of the board. AT & T
Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjust-
ment, 172 F.3d 307, 314 (4th Cir. 1999)("Winston-Salem").
To the contrary, we "must uphold a decision that has ‘substan-
tial support in the record as a whole’ even if [we] might have
decided differently as an original matter." AT & T Wireless
PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 430
(4th Cir. 1998)("Virginia Beach")(citation omitted). The task
before us, then, is to determine whether the record "contains
such relevant evidence that a reasonable mind might accept as
adequate to support the Zoning Board’s conclusion." Winston-
Salem, 172 F.3d at 315 (internal quotation marks omitted).
Such evidence must be "more than a mere scintilla," but can
be "less than a preponderance." Petersburg Cellular P’ship v.
Bd. of Sup’rs of Nottoway Cnty., 205 F.3d 688, 694 (4th Cir.
2000)("Nottoway County").
In determining that the Board’s decision satisfied subsec-
tion (B)(iii), the district court correctly noted that "a proposed
telecommunications facility’s inconsistency with local zoning
requirements can be sufficient to establish substantial evi-
dence supporting the denial of a zoning application." New
Cingular, 2010 WL 4702370, at *4. Not only have we
observed that "evidence regarding" a proposed telecommuni-
cation facility’s negative "impact on the neighborhood" may
support a finding of substantial evidence, Winston-Salem, 172
8 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY
F.3d at 317, but we have recognized that, even in the face of
conflicting evidence presented by the wireless provider, suffi-
cient evidence may support a board’s decision where there is
evidence that the proposed facility "would be inconsistent
with" a county’s "Comprehensive Plan" or "Zoning Ordi-
nance." 360° Commc’ns Co. of Charlottesville v. Bd. of
Sup’rs of Albemarle Cnty., 211 F.3d 79, 84-85 (4th Cir.
2000). See also USCOC of Va. RSA #3 v. Montgomery Cnty.
Bd. of Sup’rs, 343 F.3d 262, 272 (4th Cir.
2003)("Montgomery County")(finding that the denial of an
application to build a telecommunications tower found "ample
support" in the form of "evidence regarding the proposed
tower’s inconsistencies" with "zoning ordinances and guide-
lines").
Here, as the district court recognized, "the Board identified
a number of ways in which [AT&T’s] proposed wireless
facility would not be in harmony with the zoning objectives
and the Comprehensive Plan for that geographical area." New
Cingular, 2010 WL 4702370, at *5. Indeed, far from "provid-
[ing] the least visual impact on residential areas," as required
by the County’s Policy Plan Objective 42(i), the Board noted
that the proposed facility: (1) was to be located 100 feet from
two of the neighboring residences; (2) would extend thirty-
eight feet above the closest tree; (3) would rise approximately
forty-eight feet above the average height of the existing trees
on the adjacent property; (4) was to be located on a site con-
taining concrete pads, with only a few trees and a small,
grassy area with dense brush; and (5) called for supplemental
vegetation that, when full grown, would not reach a sufficient
height to minimize the tree monopole’s visual impact. Like
the district court, we find that these discrete characteristics of
the proposal, when considered together, are adequate to sup-
port the Board’s conclusions that the proposed facility does
not satisfy the County’s Policy Plan or the standards for
approval under the zoning ordinance.
NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 9
Moreover, even if it were assumed the above evidence were
insufficient by itself to satisfy subsection (B)(iii), there is an
additional basis on which we may conclude that the Board’s
decision was supported by substantial evidence in the record.
As our precedent reflects, when considering whether the
record "contains such relevant evidence that a reasonable
mind might accept as adequate to support the Zoning Board’s
conclusion," Winston-Salem, 172 F.3d at 315 (internal quota-
tion marks omitted), we have explained that "a reasonable
mind" should be understood as "the mind of a reasonable leg-
islator." Nottoway County, 205 F.3d at 694. Under this
reasonable-legislator standard, "[i]t 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. Hence,
"[i]f a legislative body denies a permit based on the
reasonably-founded concerns of the community, then
undoubtedly there is substantial evidence to support the
body’s decision."5 Nottoway County, 205 F.3d at 695 (internal
quotation marks and emphasis omitted).
The record indicates that the Board considered community
opposition that "[f]acilities of this type do not belong in a resi-
dential community such as ours," JA 528, and would "disrupt
the neighborhood and the country-like setting." JA 788 (inter-
nal quotation marks and alterations omitted). Given the design
of the proposed facility and its placement in the midst of a
residential neighborhood, we agree with the district court that
those community concerns were not irrational. Additionally,
board members observed at the hearing that "there [are] a lot
of houses in close proximity" to the proposed site, and that the
site "is in the middle of a residential neighborhood with very
close neighbors . . . that would see [the monopole] all the
5
Of course, while "reasonably-founded concerns of the community"
would constitute substantial evidence, the "objectively unreasonable"
opposition of an "irrational" few cannot. Nottoway County, 205 F.3d at
695.
10 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY
time." JA 511-12. On the basis of these reasonably founded
community concerns, we have little difficulty concluding that
the Board’s decision was supported by substantial evidence.
For these reasons, we find the Board’s denial of AT&T’s
application had substantial support in the record as a whole
and complied with the substantial evidence requirement of
subsection (B)(iii) of the Act.
B.
We next consider whether the Board’s decision complied
with subsection (B)(i)(II) of the Act, which forbids decisions
on tower placement that have the effect of prohibiting a car-
rier from providing personal wireless services to the area. We
recently decided a similar question in T-Mobile Northeast,
LLC v. Fairfax County Board of Supervisors, No. 11-1060
(4th Cir. Mar. 1, 2012), in which we recognized that
the language of this subsection does not encompass
the ordinary situation in which a local governing
body’s decision merely limits the level of wireless
services available because, as we have explained, the
Act cannot guarantee 100 percent coverage.
Slip op. at 13. Moreover, we stated that
we emphasize that a plaintiff’s burden to prove a
violation of subsection (B)(i)(II) is substantial and is
particularly heavy when, as in this case, the plaintiff
already provides some level of wireless service to
the area.
Id. Lastly, we made clear in T-Mobile that
a plaintiff must meet one of two standards to prevail
under subsection (B)(i)(II). The plaintiff must estab-
lish: 1) that a local governing body has a general pol-
NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 11
icy that effectively guarantees the rejection of all
wireless facility applications, Albemarle County, 211
F.3d at 87; Virginia Beach, 155 F.3d at 429; or 2)
that the denial of an application for one particular
site is "tantamount" to a general prohibition of ser-
vice, Albemarle County, 211 F.3d at 87-88.
In asserting a claim under this second theory, as
T-Mobile does here, a plaintiff must show a legally
cognizable deficit in coverage amounting to an
effective absence of coverage, and that it lacks rea-
sonable alternative sites to provide coverage. See id.
at 87-88. We also have stated that the plaintiff
should be able to demonstrate that further reasonable
efforts to gain approval for alternative facilities
would be "fruitless." See [Montgomery County], 343
F.3d [at] 269; Albemarle County, 211 F.3d at 88.
Id. at 13-14. As explained presently, even if we were to
assume under T-Mobile’s "second theory" that AT&T pro-
vided evidence establishing a prima facie case of an effective
absence of coverage, it simply failed to provide evidence to
establish "a lack of reasonable alternative sites."
In seeking to present evidence of a lack of reasonable alter-
natives, AT&T contends that it "presented evidence that it had
examined numerous other locations, but they were unusable
or unavailable."6 Br. for Appellant at 45. One of these loca-
tions, Fort Hunt National Park, was in AT&T’s view "un-
available" because previous attempts by Verizon, a competing
carrier, to locate two wireless facilities in nearby national
parks indicated that park officials "were ‘loathe’ [sic] to
6
AT&T also argues that our analysis should be guided by the FCC’s
most recent order, In re Petition for Declaratory Ruling to Clarify Provi-
sions of Section 332(c)(7)(B), 24 FCC Rcd. 13994 (F.C.C. 2009). Br. for
Appellant at 40-42. We considered and rejected that argument in T-
Mobile. Slip op. at 9-12.
12 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY
locate wireless facilities on park property, and applications
can take years to process with no certainty of outcome." Id.;
see also Reply Br. for Appellant at 26 ("[P]ark officials are
loathe [sic] to allow such facilities and applications can take
years to process with no certainty of outcome.").
The plaintiff in T-Mobile advanced a very similar argu-
ment, contending that alternative sites were unavailable as a
practical matter because a national "park’s policy prohibit[ed]
the placement of poles in the park until other alternatives are
eliminated." Slip op. at 15. The Court swiftly discarded this
assertion, finding "the difficulties presented in meeting such
restrictions are insufficient to establish that a provider lacks
reasonable alternatives for the provision of its services." Id. at
15.
Here, AT&T provides even less evidence than did T-
Mobile. As discussed above, the entirety of AT&T’s argu-
ment on this point is its bare assertion, based on nothing but
the speculation of a consultant, that Fort Hunt National Park
"was not a feasible option because park officials were ‘loathe’
[sic] to locate wireless facilities on park property, and applica-
tions can take years to process with no certainty of outcome."
Br. for Appellant at 45; Reply Br. for Appellant at 26. As we
concluded in T-Mobile, since a national park’s general policy
of denying applications because other sites have not been
eliminated as possibilities constitutes insufficient evidence to
prove a § 332(c)(7)(B)(i)(II) claim, all the more so are the
wholly speculative assertions provided here. For even if park
officials might have been "loath" to approve a proposal, a
plaintiff’s mere reference to a competitor’s prior experience
seeking to locate undescribed and unknown facilities in differ-
ent parks, without more, is insufficient evidence on which to
establish a lack of reasonable alternative sites.
We thus agree with the district court’s conclusion that
because AT&T "has yet to even submit . . . an application to
Fort Hunt National Park authorities," AT&T’s argument "that
NEW CINGULAR WIRELESS v. FAIRFAX COUNTY 13
there are ‘no other feasible alternatives’ to the Masonic Lodge
site is unpersuasive." New Cingular, 2010 WL 4702370, at
*9.
Moreover, where a plaintiff asserts a claim that a denial of
an application is tantamount to a general prohibition of ser-
vice, we have also required that plaintiff "to demonstrate that
further reasonable efforts to gain approval for alternative
facilities would be fruitless." T-Mobile, slip op. at 14 (internal
quotation and citation omitted). A plaintiff can satisfy this
burden only where further efforts would be "so likely to be
fruitless that it is a waste of time to try." Montgomery County,
343 F.3d at 268; Albemarle County, 211 F.3d at 88 (quoting
Town of Amherst, N.H. v. Omnipoint Commc’ns Enters., Inc.,
173 F.3d 9, 14 (1st Cir. 1999)). Although AT&T argues that
applications to place a telecommunications facility on a
national park "can take years to process with no certainty of
outcome," such an allegation is purely speculative and with-
out any factual basis in the record. Thus, AT&T has not estab-
lished that it would be "likely" that an application would fail.
Based on the failure of proof by AT&T, the district court
correctly granted summary judgment to the Board on AT&T’s
claim that the Board’s denial of its application violated sub-
section B(i)(II) of the Act.
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
DAVIS, Circuit Judge, concurring:
I concur fully in Judge Agee’s fine opinion for the panel.
As Judge Agee ably explains, substantial evidence supports
the Board’s decision, and AT&T has failed to provide more
14 NEW CINGULAR WIRELESS v. FAIRFAX COUNTY
than a scintilla of evidence from which a reasonable fact-
finder could conclude that further efforts to secure approval
for a wireless facility in Fort Hunt National Park are "so likely
to be fruitless that it is a waste of time to try." Maj. Op. at 13
(quoting USCOC of Virginia RSA#3, Inc. v. Montgomery
County Board of Supervisors, 343 F.3d 262, 268 (4th Cir.
2003)). That is, I agree that AT&T’s evidence on the "lack of
reasonable alternative sites" is significantly weaker than was
T-Mobile’s evidence on alternative sites in T-Mobile North-
east, LLC v. Fairfax County Board of Supervisors, No. 11-
1060, slip op. at 10, (4th Cir. Mar. 1, 2012), which the major-
ity in that case held (over my dissent) to be insufficient to
require a trial on the issue. Id. at 16. I write separately simply
to note that neither in this case nor in T-Mobile has this circuit
yet determined "whether a particular level of coverage in a
particular geographic area constitutes an ‘effective absence of
coverage.’" Id. at 29 (Davis, J., dissenting). That question
remains for resolution in a future case.