4th Circuit Holds T-Mobile Can Build Disputed Cell Tower
T-Mobile won a victory in the 4th U.S. Circuit Court of Appeals which held that the Newport News, Va., Planning Department violated the Communications Act in denying the carrier’s application to construct a cell tower at an elementary school. The Richmond-based court upheld a lower court decision in the company’s favor.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
"The Act requires that the City’s denial of T-Mobile’s application be ’supported by substantial evidence contained in a written record,” wrote Judge Albert Diaz, an Obama appointee, for a unanimous three-judge panel (http://xrl.us/bmzh3q). The city didn’t meet this test, he said. Diaz noted the court has a long history is assessing whether such a denial is based on “substantial evidence."
"Looking to the record in this case, we first note the absence of ‘repeated and widespread opposition’ to the tower,” Diaz said: Only “three residents spoke at the hearing in opposition to the application and another sent an email voicing his opposition.” The 4th Circuit eschews a “bright line as to the number of residents who must voice their opposition,” but agrees with the lower court “that the extent of the opposition is certainly relevant in assessing whether substantial evidence supports a denial,” Diaz wrote Monday.
The neighborhood opposition also didn’t voice concerns that might have made up for their low number, Diaz said. One complained about the presence of tower workers near an elementary school. “We ... agree with the district court that the concern that workers servicing the tower might pose a risk to the students was speculative and not something that a reasonable legislator would consider,” Diaz wrote. Another complained the tower would be an “eyesore” in the neighborhood. Opponents were “animated by one additional factor; their concern about the health effects of building a tower on school property,” Diaz wrote. “Certainly, the Act does not preclude residents from expressing such concerns to their representatives. The Act is equally clear, however, 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.”
"This 4th Circuit decision continues the case-by-case analysis the courts have applied to the ’substantial evidence’ requirement of the Act which makes every decision fact specific,” a wireless industry lawyer said of the decision. “While not the first court to emphasize this point, the decision is the most recent to emphasize that ‘potential health effects flowing from the grant of a conditional use permit have no place in a decision to deny a permit.'”