The Virginia Beach Decision


9 February 2000

 The Virginia Beach Decision

//Guru's Note:  This is the decision that restored the rights of citizens to have control over decisions affecting their own local environment.  The 1996 Telecom Act -- that attempted to insert the FCC into the process of controlling local decisions regarding the siting of telecom towers -- had created a situation where this historic and constitutional right was in danger of being lost.  The following Federal Court decision restored the rights of the local

Following is from the website of Miller and Van Eaton, attorneys:

The Fourth Circuit has issued an important decision upholding authority to control the placement of cellular towers.

Among other things, the decision, issued in a case involving the City of Virginia Beach and AT&T Wireless PCS and several other wireless providers, concludes :

1. cities need not issue detailed written decisions in order to support a decision to deny construction of a tower;
2. a decision to deny a request for permission to construct a tower can be based on the complaints of ordinary citizens that the tower will damage the neighborhood;
3. denial of a tower siting request is not inherently discriminatory; and
4. provisions of the Telecommunications Act which state that a city may not enact laws prohibiting the provision of cellular services do not prevent a city from denying individual applications for approval of a siting request.

The City was represented on the appeal by the City of Virginia Beach Office of the City Attorney, and by Miller & Van Eaton, P.L.L.C.

The decision is important because cellular providers have argued that cities cannot deny tower siting requests based solely on citizen complaints (at least where the company submits expert testimony that the tower siting will not harm the community). Some companies also have argued that cities must issue detailed findings of fact and law to support any siting decision. As the industry is well aware -- and as the Fourth Circuit recognized - adopting the industry position effectively eviscerates and substantially and unfairly complicates the local zoning process. Hence the Fourth Circuit rejected those positions and reversed a lower court decision that had adopted them. Particularly noteworthy is the Fourth Circuit's recognition of the importance of the input of ordinary citizens:

"The record here consists of appellees' application, the Planning Department's report, transcripts of hearings before the Planning Commission and the City Council, numerous petitions opposing the application, a petition supporting the application, and letters to members of the Council both for and against. Appellees correctly point out that both the Planning Department and the Planning Commission recommended approval. In addition, appellees of course had numerous experts touting both the necessity and the minimal impact of towers at the Church. Such evidence surely would have justified a reasonable legislator in voting to approve the application, and may even amount to a preponderance of the evidence in favor of the application, but the repeated and wide-spread opposition of a majority of the citizens of Virginia Beach who voiced their views at the Planning Commission hearing, through petitions, through letters, and at the City Council meeting -- amounts to far more than a 'mere scintilla' of evidence to persuade a reasonable mind to oppose the application. Indeed, we should wonder at a legislator who ignored such opposition. In all cases of this sort, those seeking to build will come armed with exhibits, experts, and evaluations. Appellees, by urging us to hold that such a predictable barrage mandates that local governments approve applications, effectively demand that we interpret the Act so as always to thwart average, non-expert citizens; that is, to thwart democracy. The district court dismissed citizen opposition as "generalized concerns." 979 F. Supp. at 430. Congress, in refusing to abolish local authority over zoning of personal wireless services, categorically rejected this scornful approach."

AT&T Wireless PCS, Inc. v. City Council Of The City Of Virginia Beach, No. 97-2389 (4th Circuit September 1, 1998).

For more information on the decision, call Bill Malone or Joe Van Eaton at 202-785-0600.

The material on this web site does not constitute legal advice or establish an attorney client relationship. This information is offered in order to provide a starting point for your further investigation and should not be relied upon as legal advice. Each particular situation will be factually unique. You should consult an attorney if you wish to determine your rights and obligations under applicable law.


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