The plaintiff, T-Mobile, alleged that the City’s denial of a conditional use permit violated section 704 of the Telecommunications Act of 1996 because it was not supported by substantial evidence in the written record, that it was erroneously based on concerns over effects of radio emissions, and that under state law the decision was arbitrary, capricious and unlawful.
The court first addressed whether there was substantial evidence in the record to support the denial, noting that the Fourth Circuit has stated substantial evidence is comprised of that which is relevant and “a reasonable [legislator] might accept as adequate to support a conclusion.” In looking to prior cases for guidance, the court stated that denials have been found to be based on substantial evidence when there is strong community opposition to the construction of a cellular phone tower, such as were hundreds of local residents sign petitions, or numerous individuals appear and disapprove of the construction. With these cases in mind, the court found there was no substantial evidence supporting the denial based on the facts that the City Planning Commission recommended approval, there were no petitions filed in opposition, and that only four people opposed the application at the first meeting and only three opposed it at a second meeting. These community complaints were not specific and were not accompanied by any other material evidence in the record. As such, the court found the evidence was speculative and was not of such a level that a reasonable legislator could support their conclusion. The court was careful, however, to state that it would not create a bright line test of how many residents are required in opposition of the construction to have a denial based upon substantial evidence. The court did however state that when such a few people oppose after advertisement of the meeting, the reasonability of their concerns are called into question.
Lastly, the court addressed the City’s consideration of radio emissions and their environmental effects. The court stated that the TCA forbids such a consideration when the tower would comply with regulations regarding such emissions, which it had. The record illustrated that many of the citizens and one councilwomen voiced health concerns concerning the emissions. However, there were no “positive, non-speculative assertions” showing that the City Council based its decision on health concerns, thus the court could not overturn the denial of the conditional use permit on this ground.
As the court found there was no substantial evidence to support the denial, the court reversed the City Council’s denial and ordered injunctive relieve in favor of T-Mobile Northeast.
T-Mobile NorthEast LLC v. City Council of the City of Newport News, Virginia, 2011 WL 1086496 (E.D. Va., 2/4/2011)
