Virginia Lawyers Weekly VA Lawyers Weekly
Where the five reasons given by the Board of Supervisors of Culpeper County for denying an application for a conditional use permit to build a telecommunications tower were improper or not supported by substantial evidence, the denial violated federal law. And because the Board did not timely approve or disapprove the complete application, it was approved as a matter of Virginia law.
Background
Tillman Infrastructure LLC alleges that Culpeper County, Virginia, and the Board of Supervisors of Culpeper County wrongfully denied its application for a conditional use permit to build a telecommunications tower. Both parties have moved for summary judgment.
Rationale one
The Board first argues that plaintiff’s application conflicted with the County’s preference for co-location of wireless equipment. Plaintiff claims this rationale is not supported by substantial evidence because the County’s co-location preference did not apply to its application. Under County Ordinance § 17-6-3.8, plaintiff claims that the SBA Tower was not “available” to AT&T due to the SBA Tower’s unreasonable fees, costs and contract provisions.
Even though there is no evidence in the record on the exact amount AT&T paid to lease the SBA Tower, substantial evidence does not support a finding that the SBA Tower had reasonable fees and costs, such that it was available within the meaning of the county ordinance. Because the County’s co-location preference does not apply to plaintiff’s application, this rationale fails to constitute substantial evidence for the Board’s denial.
Rationale two
The Board denied plaintiff’s application, in part, because it would “affect adversely the health or safety of persons residing or working [in] the neighborhood.” But the Act prohibits the regulation of wireless service facilities based on “the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emission.” The “phrase ‘environmental effects’ includes health concerns.” Accordingly, this rationale cannot form the basis for substantial evidence.
Rationale three
The Board also denied the application, in part, because it failed to demonstrate a “safety need or that it would enhance or expand communications in the area.” Under Virginia law, a locality cannot disapprove an application based on customer demand for service, quality of its service to or from a particular site or the applicant’s specific need for the project. This rationale thus cannot form the basis of substantial evidence since defendants are prohibited under state law from considering such a rationale.
Rationale four
Next, defendants claim the Board denied plaintiff’s application, in part, because the proposed tower violated a County ordinance by being located within less than a mile of a scenic byway. Plaintiff claims its application was exempted from this County ordinance because the proposed tower would have included FirstNet, thus qualifying it as an emergency communication tower.
Defendants claim that “the record does not support that a new emergency communication tower was even needed in that area such that the Board would be inclined to waive the requirement.” They further claim that “any argument that [plaintiff] would have as to why the proposed tower was necessary evaporate[s]” once “SBA represented that it would accommodate FirstNet equipment rent free” on its tower. Defendants’ arguments are unpersuasive. Because the record demonstrates that plaintiff intended and could have been required to install FirstNet on its tower, defendants’ fourth rationale is not supported by substantial evidence.
Rationale five
Lastly, defendants claim the Board denied plaintiff’s application, in part, because it would have adversely affected the Cedar Mountain Battlefield. The existence of opposition to plaintiff’s proposed tower being built in the Battlefield area is questionable. A reasonable legislator, assessing this evidence at the time of their decision, could not reasonably conclude that the proposed tower would have adversely impacted the Battlefield.
Conclusion
The court finds that defendants have not proffered any rationale, weighed individually and collectively, that constitutes substantial evidence to support the Board’s decision to deny plaintiff’s application. Accordingly, the Board improperly denied plaintiff’s application in violation of 47 U.S.C. § 332(c)(7)(B)(iii).
Virginia law
The court further finds that plaintiff’s application was approved as a matter of state law because the Board did not timely approve or disapprove plaintiff’s complete application.
Plaintiff’s motion for summary judgment granted. Defendants’ motion for summary judgment denied.
Tillman Infrastructure LLC v. The Board of Supervisors of Culpepper County Virginia, Case No. 3:21-cv-00040, Dec. 30, 2022. WDVA at Charlottesville (Moon). VLW 022-3-562. 24 pp.
