Recent Developments in Virginia Regarding Zoning

A federal court in Virginia ruled that a city council acted unlawfully when it denied a church’s request to construct two cellular antenna towers on its property.

Church Law and Tax1998-05-01


Key point. City governments cannot arbitrarily deny requests from churches to construct telecommunications towers on their property.

A federal court in Virginia ruled that a city council acted unlawfully when it denied a church’s request to construct two cellular antenna towers on its property. AT&T holds a license from the Federal Communications Commission to serve the Virginia Beach region in Virginia with digital wireless service. Digital wireless service requires a system of overlapping “cells” or transmission areas in order to provide uninterrupted data transmission and phone service. In order to provide such digital wireless services to individuals in the Virginia Beach area, AT&T began searching for antenna sites. It investigated a number of potential sites, which were rejected for aesthetic or technical reasons, before contacting a Methodist church. The congregation agreed to lease a part of its property to AT&T for the erection of two antenna towers. Under local law the construction of the towers required the church to obtain a conditional use permit. As a result, the church submitted an application for a conditional use permit to the city council. The application included a site plan specifying the location of the towers and related buildings, a letter from the manufacturer of the towers certifying compliance with engineering specifications, and a certificate of compliance with federal guidelines for exposure to radio frequency radiation. A letter from a property appraisal firm was also submitted stating that the proposed towers would have no adverse effect upon the residential property values of neighboring homes. The city council met to review the application, and heard several witnesses on both sides of the issue. One council member told the church that “under the law you may have rights that I’m not aware of, but under a conditional use permit, you’re about to go down in flames.” The city council voted unanimously to reject the church’s application. The church sued the city, claiming that its refusal to allow construction of the towers violated the federal Telecommunications Act of 1996. The court agreed. It acknowledged that the Act generally gives local governments the authority to determine the placement of antenna towers. However, it noted that the Act imposes a procedural duty upon state and local zoning authorities by providing that “any decision by a state or local government … to deny a request … [for] personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” The church insisted that the city’s decision was not supported by “substantial evidence contained in a written record.” The court agreed, noting that all the city had produced were the minutes of the council meeting listing the names of the council members and their decision to deny the church’s application. This evidence did not contain sufficient information “to permit a reviewing court to ascertain the rationale behind the decision.” The city insisted that the church’s application was denied because of concerns for the compatibility of the antennas with the neighborhood, particularly with regard to aesthetic and visual impact. The court was not persuaded, noting that conclusory statements without any supporting justification were not a sufficient basis for denying the church’s application. The court ordered the city to issue the church a conditional use permit for the construction of the antenna towers.

Application. Many churches have been approached by telecommunications companies to construct antenna towers on their property. This case will be a useful precedent to any church that wants to use its property for such a purpose, and that is opposed by local authorities. AT&T Wireless PCS, Inc. v. City Council, 979 F. Supp. 416 (E.D. Va. 1997). [Zoning Law and Churches]

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