Federal Court to City of Newport News: Do as We Say
In a case that is not likely to receive any amount of media attention, the Fourth Circuit Court of Appeals recently held that the City of Newport News must grant T-Mobile a conditional use permit to erect a new cell tower on the grounds of R.O. Nelson Elementary School. The case is styled T-Mobile Northeast, LLC v. City of Newport News (Case No. 11-1293). The full opinion can be found here (pdf).
T-Mobile had received complaints about gaps in coverage in the Denbigh area of the City of Newport News. The company identified the elementary school as a prime location for a new wireless tower. T-Mobile secured a lease agreement with the Newport News School Board and applied to the city for the conditional use permit that would allow them to build the tower at Nelson Elementary. Since no towers had previously been built at area elementary schools (although they had been built at some high schools) “the Planning Department and the School Board conducted a joint study into the appropriateness of building towers at elementary schools.” From the opinion:
In an August 2009 report ("Report"), the Planning Department noted that "[e]lementary school sites are desirable to mobile phone service providers for building cell phone towers because the sites usually are embedded within residential neighborhoods." Id. 240. The Report also recommended Nelson Elementary as an "acceptable" site for a tower, finding that (1) the school had more land than needed for recreational areas, (2) a tower "should not unduly impact the adjacent residences," (3) the zoning of the surrounding areas did not permit a tower and no towers were in the area, (4) although single-family residences were nearby, "an extensive wooded buffer will remain that will reduce [the tower’s] visibility from adjoining properties," and (5) a tower "will have minimal impact on the surrounding properties and neighborhood if a stealth design is used."
The City Council did not approve the application at that time, citing the desire to study alternative locations. In the meantime, T-Mobile continued discussions with the City Planning Department and submitted a slightly modified application. Some time thereafter, the City Council held a public hearing on T-Mobile’s application. At that hearing, six people spoke in favor of approving the application and three people spoke against the application. Ultimately, the City decided to deny the application by a 4-3 vote.
Let me pause here a moment to say that there really were no good outcomes here. Residents seemed to want the new cell towers and T-Mobile was ready to provide them. It’s troubling that the City felt the need to interject itself between consumers and a company that was ready and willing to provide them with the services that they wanted. Decisions like the one one made by Newport News are undoubtedly a regular occurrence at city council meetings across the country. It’s incumbent upon those who value freedom, therefore, to get involved in local government to prevent things like this from happening.
What happened after the City Council’s decision should have come as no surprise in today’s litigious society: T-Mobile sued the city. Their suit was based on the Telecommunications Act of 1996. They claimed that the City’s decision was not supported by substantial evidence and that the decision was “unlawfully based on concerns of potential health effects from emissions” (both of which violate sections of the Telecommunications Act). Ultimately, the Court of Appeals did not have anything to say about the second of those claims because, as will be explained below, the Court found that the decision was not based on substantial evidence.
Judge Albert Diaz, writing for the panel, had this to say about the Telecommunications Act of 1996:
Congress enacted the Telecommunications Act of 1996 "to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." The Act "sought to limit the ability of state and local governments to frustrate the [ ] national purpose of facilitating the growth of wireless telecommunications, [but] also intended to preserve state and local control over the siting of towers and other facilities that provide wireless services." To strike this balance, the Act preserves the power of the local zoning authority "over decisions regarding the placement, construction, and modification of personal wireless service facilities," while placing certain limits on that authority.
(citations omitted). So right from the beginning it’s plain to see that the Telecommunications Act was intended to transfer power from state and local governments to the federal government. Within that context, the Court proceeded to apply the “substantial evidence” standard. “Substantial evidence,” wrote Judge Diaz, “is more than a mere scintilla, but less than a preponderance.”
Thus, the court proceeded to review the evidence that was presented in the application process. There was, wrote Judge Diaz, an “absence of ‘repeated and widespread opposition’ to the tower.” Only three people appeared to speak in opposition to construction of the tower and that “anemic turnout” was not due to any lack of public notice. Two of those who spoke against the new tower expressed concerns over the possible negative effect on property values. Although conceding that “the testimony of a property owner is ‘competent and admissible on the question of the value of such property,’” the court ultimately concluded that there was “little value to the vague and uncorroborated concerns about property values expressed in this case.”
The court gave little credit to passing comments about aesthetics. It dismissed “the concern that workers servicing the tower might pose a risk to the students” as “speculative and not something that a reasonable legislator would consider.” Finally, the court refused to consider complaints about potential health effects of the tower, noting that the Telecommunications Act (47 U.S.C. § 332(c)(7)(B)(iv) in particular) specifically prohibits health concerns from being considered if the facility in question complies with the applicable federal regulations. Since there was no allegation that T-Mobile’s new tower would not be in compliance, health and environmental concerns were off the table. The court concluded, then, that “the record does not support the City’s denial of T-Mobile’s application.” The injunction “directing that T-Mobile’s application be granted” was upheld.
The result of this case is that the will of the elected City Council of the City of Newport News has been overturned by three federal judges. It should be obvious that local zoning decisions are not and should not be within the purview of the national government. Obviously, the men who wrote the Constitution didn’t envision cell towers (or zoning laws, for that matter), but this level of national involvement in local affairs is exactly the type of thing they were trying to avoid.
Granted, this was probably a bad decision by the City Council, but preventing states and localities from making bad decisions was never the point of the federal government. If there was to be any recourse for the aggrieved citizens of Newport News who wanted better cell phone coverage that recourse should have been had at the local level. Residents of that area may now have the result they wanted, but they must now ask themselves whether it was worth the cost.