T-Mobile Northeast LLC v. Howard County Board of Appeals , 524 F. App'x 9 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1682
T-MOBILE NORTHEAST LLC,
Plaintiff – Appellant,
v.
HOWARD COUNTY BOARD OF APPEALS,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cv-00729-RDB)
Argued: March 21, 2013 Decided: May 3, 2013
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Wilkinson and Judge King concurred.
ARGUED: Thomas Scott Thompson, DAVIS WRIGHT TREMAINE, LLP,
Washington, D.C., for Appellant. Melissa Shane Whipkey, HOWARD
COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appellee. ON
BRIEF: Margaret Ann Nolan, County Solicitor, HOWARD COUNTY
OFFICE OF LAW, Ellicott City, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
T-Mobile Northeast LLC (“T-Mobile”) challenges a zoning
decision by the Howard County Board of Appeals (the “Board”)
denying T-Mobile’s application for a conditional use permit to
construct a communications tower on the property of a church
located in the County. T-Mobile argues that the Board violated
the Telecommunications Act of 1996 in denying the company’s
permit application because the decision was not supported by
substantial evidence or, in the alternative, because it
effectively prohibited the provision of wireless services.
But our review reveals that substantial evidence supports
the Board’s conclusion that T-Mobile did not diligently seek to
site the tower on government property, as required by local
zoning regulations. And we cannot conclude that the Board’s
denial constitutes an effective prohibition of service because
T-Mobile did not demonstrate that there are no reasonable
alternatives to the church site to remedy its coverage
deficiency. Therefore, we affirm.
I.
T-Mobile, a licensed personal wireless services provider,
determined that it had a coverage deficiency along a portion of
Burntwoods Road in Howard County, Maryland. To remedy the
deficiency, T-Mobile sought to construct a new facility, a
2
“stealth” telecommunications monopole, at the rear of Shepherd
of the Glen Lutheran Church property in Glenwood, Maryland (the
“site”). T-Mobile considered siting the facility at four other
locations-Glenelg High School, Walnut Springs Nursery,
Gethsemane Baptist Church, and a cluster of amateur “ham” radio
towers-but ultimately determined that each of these locations
was either not technically feasible or practically unavailable.
The site selected by T-Mobile is zoned as a Rural
Residential-Density Exchange Option District. Howard County’s
zoning regulations require a conditional use permit for the
construction of communications towers on Rural Residential-
Density Exchange Option District properties. In pertinent part,
Howard County’s zoning regulations provide:
The Hearing Authority shall have the power to permit
conditional uses, provided the following general
standards are met: . . .
The proposed use at the proposed location will not
have adverse effects on vicinal properties above and
beyond those ordinarily associated with such uses. In
evaluating the plan under this standard, the Hearing
Authority shall consider whether: . . .
The ingress and egress drives will provide safe access
with adequate sight distance, based on actual
conditions, and with adequate acceleration and
deceleration lanes where appropriate. . . .
An applicant for a new communication tower shall
demonstrate that a diligent effort has been made to
locate the proposed communication facilities on a
government structure or, on an existing structure or
within a nonresidential zoning district, and that due
to valid considerations, including physical
3
constraints, and economic or technological
feasibility, no appropriate location is available.
Howard County Zoning Regulations §§ 131.B, 131.N.14.b.(1). The
regulations also provide that
The applicant for a conditional use shall have the
burden of proof, which shall be by a preponderance of
the evidence and which shall include the burden of
going forward with the evidence and the burden of
persuasion on all questions of fact which are to be
determined by the Hearing Authority or are required to
meet any provisions of these regulations.
Id. § 131.G.
On November 20, 2009, T-Mobile submitted a “Conditional Use
Petition” to the Howard County Hearing Authority requesting to
build a wireless facility on the site. On February 18, 2010,
the Howard County Department of Planning and Zoning issued a
Technical Staff Report finding that T-Mobile had satisfied the
criteria for a conditional use permit and recommending that T-
Mobile’s petition be granted.
After holding a hearing, the Hearing Examiner issued a
decision denying T-Mobile’s petition on March 15, 2010. In so
ruling, the Hearing Examiner found there were no “sight
distance” or safe access issues and that T-Mobile had complied
with regulations regarding the investigation of alternative
sites, but denied the petition due to concerns over the size of
T-Mobile’s proposed equipment compound.
4
T-Mobile appealed to the Board. The Board held three
public hearings concerning T-Mobile’s application during which
participants questioned T-Mobile’s efforts to site the facility
at alternative locations. In particular, Board members
expressed concern that T-Mobile had not engaged in formal
negotiations with Glenelg High School to locate the facility
there. The Board denied T-Mobile’s petition on February 16,
2011 on grounds that the company had failed to meet its burden
to demonstrate that the proposed ingress and egress to the site
would “provide safe access with adequate sight distance” and to
show that it had made a diligent effort to site the facility on
government property. J.A. 135.
T-Mobile brought the present action in federal district
court on March 18, 2011, seeking declaratory and injunctive
relief from the Board’s decision. Specifically, T-Mobile
alleged that the Board’s denial of the company’s permit
application violated two provisions of the Telecommunications
Act, 47 U.S.C. § 332(c)(7)(B)(i)(II) and (B)(iii), and Maryland
law. T-Mobile moved for summary judgment on August 26, 2011,
and soon thereafter the Board filed a cross-motion for summary
judgment. On March 30, 2012, the district court denied T-
Mobile’s motion and entered summary judgment in favor of the
Board. T-Mobile Ne. LLC v. Howard Cnty. Bd. of Appeals, 2012 WL
1123043, at *10 (D. Md. March 30, 2012) (“Howard County”).
5
Following the district court’s denial of T-Mobile’s Motion to
Reconsider, T-Mobile timely appealed to this Court.
II.
We review a district court’s decision on summary judgment
de novo, “applying the same legal standards as the district
court.” T-Mobile Ne. LLC v. City of Newport News, Va., 674 F.3d
380, 384-85 (4th Cir. 2012) (“Newport News”) (quotation
omitted). “The court shall grant summary judgment 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). In determining whether a party is
entitled to summary judgment, we consider “all facts and
reasonable inferences therefrom in the light most favorable to
the nonmoving party.” Newport News, 674 F.3d at 385 (quotation
marks omitted).
On appeal, T-Mobile contends that the district court’s
decision was contrary to the Telecommunications Act, which
Congress enacted to facilitate the development and proliferation
of new telecommunications technology and infrastructure. See
Pub. L. No. 104-104, 110 Stat. 56 (1996). In drafting the
statute, Congress sought to preserve local and state
governments’ traditional control over land use and zoning
decisions, while also ensuring their decisions did not
6
constitute an undue impediment to the rapid deployment of
wireless communications technology. 360̊ Commc’ns Co. of
Charlottesville v. Bd. of Supervisors of Albemarle Cnty., 211
F.3d 79, 86 (4th Cir. 2011) (“Albemarle County”).
T-Mobile argues that the Board’s decision ran afoul of two
provisions of the Telecommunications Act: (1) Section
332(c)(7)(B)(iii), which requires that state or municipal
decisions denying an application to construct a wireless service
facility be “supported by substantial evidence,” and (2) Section
332(c)(7)(B)(i)(II), which provides that “[t]he regulation of
the placement, construction, and modification of personal
wireless service facilities by any State or local government . .
. shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.” 1 We disagree.
1
T-Mobile also contends that the Board’s decision violated
Maryland Law, which requires that a Board’s decision be in
accordance with local zoning regulations and supported by facts
in the record. Md. Code. Ann. art 25A, § 5; J.A. 23-24. To
satisfy Section 332(c)(7)(B)(iii)’s substantial evidence
requirement, a zoning decision must comply with state and
municipal zoning law. Mobile Cent., LLC v. Wyandotte Cnty., 546
F.3d 1299, 1307 (10th Cir. 2008); MetroPCS, Inc. v. City &
Cnty. of San Francisco, 400 F.3d 715, 723–24 (9th Cir. 2005);
Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d
Cir. 1999). Thus, as the district court correctly concluded, T-
Mobile’s contention that the decision was not in accord with
Maryland law merges with its substantial evidence claim under
the Telecommunications Act. Howard Cnty., 2012 WL 1123043, at
*4.
7
A.
For purposes of actions under Section 332(c)(7)(B)(iii), we
have held that “ ‘[s]ubstantial evidence’ is more than a mere
scintilla, but less than a preponderance,” Newport News, 674
F.3d at 385, and is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” AT&T
Wireless PCS, Inc. v. City Council of the City of Virginia
Beach, 155 F.3d 423, 430 (4th Cir. 1998) (quoting Universal
Camera v. NLRB, 340 U.S. 474, 488 (1951)). Under this standard,
we must affirm if the Board’s decision was reasonable, even if
we would have reached a different conclusion independently.
Newport News, 674 F.3d at 386.
T-Mobile contends that substantial evidence did not support
the Board’s conclusion that T-Mobile failed to make a diligent
effort to site the facility on government property, as required
by local regulations. Howard County Zoning Regulations §
131.N.14.b.(1). In particular, the Board found that T-Mobile
failed to make adequate efforts to site the facility at Glenelg
High School because the company
made only telephone calls to the Howard County School
Facilities Office about building a telecommunications
light pole at the Glenelg High School [and] had not
identified anyone [it] had talked to as having
authority to decide on acceptance of the monopole
installation on the particular property. More
importantly, [T-Mobile] had not demonstrated to the
Board that it had submitted written proposals with
specifications to any person of authority to obtain
8
acceptance of installation of the monopole on a
particular property. A telephone call to an entity
without more regarding locating a cell tower on a
particular property is hardly sufficient to comport
with the requirement of “diligent effort.”
J.A. 136.
On appeal, T-Mobile argues that it diligently sought to
site the tower at Glenelg High School as evidenced by the fact
that it received (1) a verbal rejection from an unidentified
employee with the Howard County Public School System (the
“School System”) facilities office and, subsequently, (2) a
written rejection from School System Chief Operating Officer
Teresa Alban.
Regarding the verbal rejection, Mearl Kemberling, a site
acquisition specialist for T-Mobile, made a phone call to the
School System facilities office to gauge its interest in placing
the facility on Glenelg High School grounds. Kemberling
attested that the person he spoke with said the facilities
office recently had rejected a proposal from AT&T Wireless to
build a telecommunications facility at the high school and was
not interested in T-Mobile’s offer either.
But Kemberling was unable to identify the person with whom
he spoke and did not know if that person had authority to make a
decision regarding whether to install a wireless facility on
school property. Nor could Kemberling provide any written
record of the phone call, contending it had been destroyed in a
9
flood. Indeed, during oral argument on the summary judgment
motions, T-Mobile’s counsel acknowledged that Kemberling “was a
little bit sloppy” and “should have at least kept track of who
he was talking to and what their position was.” J.A. 596–97.
In such circumstances, we cannot say that the Board unreasonably
concluded that Kemberling’s single phone call did not constitute
a diligent effort to site the facility at Glenelg High School.
Additionally, School System Chief Operating Officer Alban’s
letter to T-Mobile, dated October 11, 2010, stated simply: “Per
your request to provide a written statement, our response is
that we have denied the request to put a cell phone tower on
school system property.” J.A. 123. T-Mobile contends that this
letter was an “unequivocal[]” denial of its request to install a
wireless facility at Glenelg High School. Appellant’s Br. at
36.
But, as the district court correctly noted, the letter was
issued the day before the Board’s last hearing on T-Mobile’s
application and “did not contain any specifics as to the
request.” Howard Cnty., 2012 WL 1123043, at *6. T-Mobile also
failed to produce any independent documentation regarding the
specifics of its “request.” Moreover, given the letter’s
brevity, we cannot determine whether the letter rejected a
particular proposal from T-Mobile or generally denied all
requests to install wireless facilities at the school. Thus,
10
the Board reasonably concluded that the letter did not satisfy
T-Mobile’s burden to show that it had made a diligent effort to
locate the tower at Glenelg High School, and therefore the Board
did not commit reversible error in denying T-Mobile’s
application. 2
B.
Having determined that substantial evidence supports the
Board’s decision, we next must decide whether the denial of T-
Mobile’s permit application is “tantamount” to a general
prohibition of service, in violation of Section
332(c)(7)(B)(i)(II). T-Mobile Ne. LLC v. Fairfax Cnty. Bd. of
Supervisors, 672 F.3d 259, 266 (4th Cir. 2012) (“Fairfax
County”).
To prevail on a theory that the denial of a petition for a
particular site effectively prohibits service, a plaintiff must
show (1) that there is “a legally cognizable deficit in coverage
amounting to an effective absence of coverage, and (2) that it
lacks reasonable alternative sites to provide coverage.” Id. at
268. “[A] plaintiff’s burden to prove a violation of [Section
2
Because substantial evidence supports the Board’s
conclusion that T-Mobile failed to make diligent efforts to site
the facility on government property, we need not address the
Board’s alternative basis for denying T-Mobile’s petition-that
T-Mobile failed to provide adequate evidence of safe access to
the site.
11
332(c)(7)(B)(i)(II)] is substantial and is particularly heavy
when . . . the plaintiff already provides some level of wireless
service to the area.” Id. If a plaintiff fails to meet its
burden on either of the two prongs, it is not entitled to
relief. Id. at 266, 268.
To show a lack of reasonable alternative sites, a plaintiff
must “demonstrate that further reasonable efforts to gain
approval for alternative facilities would be fruitless.” New
Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. of Sup’rs (“New
Cingular II”), 674 F.3d 270, 277 (4th Cir. 2012) (quoting
Fairfax Cnty., 872 F.3d at 268). This burden is satisfied if
the plaintiff shows that reasonable efforts to obtain approval
for alternative sites are “so likely to be fruitless that it is
a waste of time to try.” Id. at 277 (quotations omitted). In
assessing whether further efforts to gain approval of
alternative facilities would be “fruitless,” we also consider a
zoning board’s past decisions on applications for wireless
facilities. Fairfax Cnty., 672 F.3d at 269.
Here, T-Mobile does not dispute that there is some level of
wireless coverage in the area. J.A. 450-56 (noting, in an
expert report prepared for and relied upon by T-Mobile, that
there is not “reliable” in-building and in-vehicle wireless
coverage in the area served by the proposed site). Thus, T-
12
Mobile’s burden to show a lack of reasonable alternatives is
“particularly heavy.” Fairfax Cnty., 672 F.3d at 268.
As we explained previously, the Board reasonably determined
that T-Mobile failed to produce sufficient evidence that it
diligently pursued siting the facility at Glenelg High School.
See supra Part II.A. In such circumstances, we cannot presently
conclude that T-Mobile has met its “particularly heavy” burden
of showing that further efforts to locate the facility at an
alternative site-Glenelg High School, in particular-would be
“fruitless.” Moreover, it is undisputed that the Board has a
strong record of approving conditional use permits: Since
October 2008, the Board has approved five of the six conditional
use permit applications submitted by T-Mobile. Therefore,
because T-Mobile has failed to satisfy its burden of showing a
lack of reasonable alternatives to the proposed site, it is not
entitled to relief under Section 332(c)(7)(B)(i)(II). 3
III.
In sum, substantial evidence supported the Board’s decision
that T-Mobile failed to make diligent efforts to site the
facility at Glenelg High School. And T-Mobile did not satisfy
3
Because we conclude that T-Mobile failed to satisfy its
burden on the lack of reasonable alternatives prong, we need
not, and thus do not, address the effective absence of coverage
prong. Fairfax Cnty., 672 F.3d at 266, 268.
13
its “particularly heavy” burden to show that there were no
reasonable alternative sites to provide coverage. Accordingly,
we affirm.
AFFIRMED
14