                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2396


T-MOBILE NORTHEAST LLC,

                Plaintiff - Appellee,

           v.

THE LOUDOUN COUNTY BOARD OF SUPERVISORS,

                Defendant - Appellant.



                              No. 12-2397


T-MOBILE NORTHEAST LLC,

                Plaintiff - Appellant,

           v.

THE LOUDOUN COUNTY BOARD OF SUPERVISORS,

                Defendant - Appellee.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cv-01201-GBL-JFA)


Argued:   December 12, 2013                 Decided:   April 3, 2014


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion
for the court except as to Part IV.C.1 in part and Part IV.C.2,
in which Judge Agee concurred except as to Part IV.C.1 in part
and Part IV.C.2. Judge Niemeyer wrote a separate opinion as to
Part IV.C.1 in part and Part IV.C.2.         Judge Agee wrote a
separate opinion concurring in part.        Judge Wynn wrote a
separate opinion concurring in part and dissenting in part.


ARGUED:   Thomas David Stoner, GREEHAN, TAVES, PANDAK & STONER,
PLLC, Chantilly, Virginia, for Appellant/Cross-Appellee. Thomas
Scott Thompson, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C.,
for Appellee/Cross-Appellant.    ON BRIEF:    J. Patrick Taves,
Michael W.S. Lockaby, GREEHAN, TAVES, PANDAK & STONER, PLLC,
Chantilly, Virginia; John R. Roberts, County Attorney, Ronald J.
Brown, Deputy County Attorney, LOUDOUN COUNTY ATTORNEY’S OFFICE,
Leesburg, Virginia, for Appellant/Cross-Appellee.      Daniel P.
Reing, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C., for
Appellee/Cross-Appellant.




                               2
NIEMEYER, Circuit Judge, for the court except as to Part IV.C.1
in part and Part IV.C.2:

      In October 2011, the Loudoun County (Virginia) Board of

Supervisors denied the applications of T-Mobile Northeast LLC

for permits to build two telecommunication towers in Loudoun

County -- one disguised as a bell tower, to be located on the

property of a church in Sterling (in the eastern part of the

county), and one disguised as a silo on a farm in Lovettsville

(in the northern part of the county).              T-Mobile commenced this

action under the Telecommunications Act of 1996, challenging the

Board’s decisions.

      On cross-motions for summary judgment, the district court

concluded       that    the    Board    improperly       denied        T-Mobile’s

application for the silo tower in Lovettsville because the Board

relied on the environmental effects of radio frequency emissions

-- a statutorily prohibited basis for regulation.                     Even though

the Board had given other valid reasons for its decision, the

court   issued    an   injunction   requiring     the   Board    to    issue    the

necessary permits for the site, concluding that if it remanded

the case, the valid reasons would only become a subterfuge for

the invalid environmental reason.           The district court affirmed

the   Board’s    decision     denying   permits   for   the     bell    tower    in

Sterling because (1) substantial evidence supported the Board’s

decision; (2) a denial of the permits would not have the effect


                                        3
of prohibiting T-Mobile from providing personal wireless service

to its customers; and (3) the decision was not based on the

environmental effects of radio frequency emissions.

     On appeal, the Board contends that the illegal reason it

gave for denying the application for the silo tower represented

the views of only one member of the Board and was not binding on

the Board.       Moreover, it argues, it gave other valid reasons

sufficient to justify denial of T-Mobile’s application for the

silo tower.      On its cross-appeal, T-Mobile contends that neither

of the Board’s denials were supported by substantial evidence

and, with respect to the bell tower, that the Board’s decision

denied it the ability to fill significant gaps in its wireless

coverage and therefore effectively prohibited it from providing

personal wireless service, in violation of the Act.                 It also

contends that the Board relied on radio frequency emissions to

deny the bell tower application, although not expressly.

     For   the    reasons   given   herein,     we   affirm   the   district

court’s rulings as to both of the Board’s decisions.


                                     I

     T-Mobile’s     business   includes   the    provision    of    personal

wireless service, along with other telecommunications services,

in the Washington metropolitan area, including Loudoun County.

Its wireless network, like other wireless networks, operates by


                                     4
transmitting           radio          signals    to        and    from     antennas         mounted         on

towers,      poles,         buildings,          or    other       structures.              In    order      to

provide          reliable         service,       it        must     have        multiple         antennas

arranged in a grid by which to overlap coverage.                                       While T-Mobile

currently         has       56     wireless          telecommunications                facilities           in

Loudoun          County,         it     determined,             based     upon       its        engineers’

analyses, that it still had substantial gaps in coverage in the

areas       at    issue      here.         To        address       the     deficiency,            T-Mobile

identified            two    locations          at    which        it    sought        to       build      new

wireless          telecommunication              facilities:                   (1)     the        property

surrounding the Christ Our Savior Lutheran Church on Jefferson

Drive in Sterling, Virginia (the “Bell Tower Site”) and (2) the

area    surrounding              the     Stephens          family        farm    in     Lovettsville,

Virginia (the “Silo Site”).                      After making arrangements with both

the     Stephens            family       and     the           Church     for     construction             of

facilities on their properties, T-Mobile submitted applications

to    the    Loudoun         County       Board           of    Supervisors          for    permits        to

construct monopole antennas at the sites -- one disguised as a

silo and the other as a bell tower.

       In order to build on the sites, T-Mobile was required to

secure from Loudoun County:                          (1) a “commission permit,” which

issues      initially            from    the    County           Planning       Commission           and   is

reviewed         by    the    Board       for    final          approval,       and    (2)       a   zoning

“special         exception,”            which        is        granted    by     the       Board.           In

                                                      5
evaluating both types of applications, the Planning Commission

and       the    Board      consider     the    location       and    character    of   the

proposed structure to determine whether it is in accord with the

Loudoun County Comprehensive Plan (the “Comprehensive Plan” or

the “Plan”).           Since 1996, the Comprehensive Plan has included a

“strategic land use plan for telecommunications facilities” that

favors          the    construction       of        such    facilities      on     existing

structures and requires compatibility with other land uses.                             The

plan requires that proposals for facilities include siting and

design elements that “mitigate negative impacts” and satisfy a

number of aesthetic criteria.                   Also, the county’s zoning rules

require that such facilities be “compatible with development in

the       vicinity       with   regard    to    the        setting,    color,    lighting,

topography, materials, and architecture.”                            The plan’s overall

goal is to ensure that telecommunications facilities “blend with

the background.”


The Silo Site application

          T-Mobile’s Silo Site application proposed a monopole hidden

in    a    125-foot-high        farm     silo   that       T-Mobile    would     construct.

When the Planning Commission voiced concerns about the height of

the silo, T-Mobile revised its proposal to reduce the height to

100   feet.           The   Planning     Commission         then   issued   a    commission

permit and recommended approval of the facility, finding that


                                                6
the design was in conformity with the Comprehensive Plan.                       After

T-Mobile     submitted   the    Planning         Commission’s      decision    to   the

Board, the Board held a public hearing in July 2011 on both the

commission permit and the special exception.                       County residents

present spoke mostly in opposition to the proposal, mentioning

concerns about the silo’s aesthetics and the antenna’s emission

of   radio    waves.       In       response      to   the   continuing       comments

regarding     aesthetics       at    the    Board      meeting,     T-Mobile     again

revised its proposal, reducing the proposed height of the silo

to 90 feet.

     The Board conducted a business meeting on October 17, 2011,

to vote on the Silo Site application.                     During the meeting, the

Board members (Supervisors) discussed reasons for rejecting the

application, including aesthetic concerns and the availability

of other potential sites.             Supervisor Miller also requested, in

response to the numerous comments of citizens, that the Board

include the “negative environmental impact” from radio frequency

emissions    as   a   reason    in    the       pending   motion    for   denying   T-

Mobile’s application.          The Board accepted Miller’s suggestion to

amend the pending motion and then voted 7 to 2 to carry the

motion.      As required by the Telecommunications Act, the Board

issued a written notice of its decision.                     It gave four reasons

for denying the special exception:                 (1) the proposed design did

not mitigate the silo’s significant structural presence, thus

                                            7
creating      “an   unnecessary        visual    impact       on   surrounding

properties”; (2) the proposed silo height of 90 feet did not

“blend with the . . . surrounding area”; (3) a denial of the

application     would   not    “have    the   effect   of    prohibiting   the

provision of personal wireless services in this area”; and (4)

the facility would have a “negative environmental impact.”                 And

it gave two reasons for denying the commission permit:                (1) the

project was not consistent with the strategic land use plan; and

(2) other preferred locations were available to T-Mobile.


The Bell Tower Site application

     T-Mobile’s     original    application     for    a    telecommunications

facility on the Church property included a proposal to construct

an 80-foot flagpole that would house the antenna.                    When the

Planning Commission rejected that proposal, T-Mobile amended it

to propose instead an 80-foot bell tower to house the antenna.

During the ensuing review process, T-Mobile made a number of

additional changes in design, such as varying the color scheme

of the structure to better blend with the background.                 It also

offered alternative designs, such as a steeple or tree pole.

After a lengthy give-and-take process, the Planning Commission

issued the commission permit and recommended approval of the

facility.




                                        8
       The Board held its public hearing on the Bell Tower Site

application on September 12, 2011, and citizens raised a number

of concerns with the project, primarily aesthetic, referring to

the proposed facility’s visual impact.                      As with the Silo Site,

some citizens also raised concerns over the possible negative

health impacts of radio frequency emissions.

       The Board conducted a business meeting on the Bell Tower

Site   application    on    October       4,      2011,    and,       following      a    brief

discussion, voted to reject it.                   The Board’s written notice of

decision gave as reasons that the proposed facility (1) was not

at a preferred location; (2) was not on an existing structure;

(3) was in a residential area; and (4) did not mitigate the

impact on adjacent residential uses.                     The Board did not refer to

the citizens’ concerns over radio frequency emissions and gave

no   indication    that     it    relied       on   such       concerns      to    deny    the

application.

       Following   the     Board’s       rejection        of    its    applications,         T-

Mobile    commenced        this        action,      alleging          that     the        Board

overstepped       several        limitations         imposed          on     it    by      the

Telecommunications Act of 1996.                   With respect to the Silo Site,

T-Mobile alleged that the Board’s denial was not supported by

substantial    evidence          and    was       made     on    the       basis     of    the

environmental effects of radio frequency emissions.                                And with

respect to the Bell Tower Site, it alleged that the Board’s

                                              9
rejection was not supported by substantial evidence, caused an

effective prohibition of service, and was made on the basis of

radio frequency emissions.

     On       the   parties’    cross-motions            for    summary   judgment,       the

district court entered judgment in favor of T-Mobile on the Silo

Site,     concluding       that       although       the       Board’s    rejection       was

supported by substantial evidence, the Board improperly relied

on the environmental effects of radio frequency emissions.                                The

court entered an injunction directing the Board to issue the

necessary permits to T-Mobile for construction of the Silo Site

tower.        And,    as   to   the    Bell    Tower       Site,    the   court     entered

judgment in favor of the Board, rejecting each of T-Mobile’s

arguments.           T-Mobile   Northeast          LLC    v.    Loudoun   Cnty.     Bd.    of

Supervisors, 903 F. Supp. 2d 385 (E.D. Va. 2012).

     From the district court’s judgment dated July 20, 2012, the

Board filed an appeal challenging the court’s decision on the

Silo Site, and T-Mobile filed a cross-appeal challenging the

court’s affirmance of the Board’s decision on the Bell Tower

Site, as well as its conclusion that the Board’s decision on the

Silo Site was supported by substantial evidence.


                                              II

        The    Telecommunications         Act       of     1996    was    enacted     “[t]o

promote competition and reduce regulation in order to secure


                                              10
lower    prices          and     higher        quality          services     for          American

telecommunication consumers and encourage the rapid deployment

of new telecommunications technologies.”                           Pub. L. No. 104-104,

110 Stat. 56, 56 (1996).                    As part of the Act, Congress divided

authority over personal wireless service facilities, preserving

generally      to    state       and        local    governments         their    traditional

zoning        control          over     the         placement,       construction,                 and

modification        of     such       facilities          while,    at     the    same         time,

limiting state and local governments’ ability “to frustrate the

Act’s national purpose of facilitating the growth of wireless

telecommunications.”              360° Commc’ns Co. of Charlottesville v.

Bd. of Supervisors of Albemarle Cnty., 211 F.3d 79, 86 (4th Cir.

2000); see also City of Rancho Palos Verdes v. Abrams, 544 U.S.

113,    115    (2005)      (noting      that        the   Act    “reduc[ed]       .       .    .   the

impediments imposed by local governments upon the installation

of    facilities         for    wireless       communications,           such     as          antenna

towers”).       Specifically, the Act provides that in regulating the

siting and construction of wireless facilities, a state or local

government       (1)       may        not     “unreasonably         discriminate                among

providers”; (2) may not effectively prohibit “the provision of

personal wireless services”; (3) must act on a request to place,

construct, or modify such facilities “within a reasonable period

of time”; (4) must render its decisions “in writing” and with

the    support      of    “substantial         evidence         contained    in       a       written

                                                11
record”; and (5) may not regulate the placement, construction or

modification          of     such     facilities         “on     the    basis      of    the

environmental effects of radio frequency emissions to the extent

that    such     facilities          comply       with    the    [FCC’s]      regulations

concerning such emissions.”                  47 U.S.C. § 332(c)(7)(B).                  State

and local governments must comply with each of these provisions

when regulating wireless facilities.

       The    Act     provides      that    anyone       “adversely     affected”       by    a

final decision of a state or local government under § 332(c)(7)

may commence an action “in any court of competent jurisdiction,”

which must hear and decide the action “on an expedited basis.”

47    U.S.C.     §    332(c)(7)(B)(v).             When       such   action     challenges

whether the state or local government’s decision was supported

by    “substantial         evidence,”       see    id.    §    332(c)(7)(B)(iii),         the

court defers to the state or local government, upholding its

decision if it has “substantial support in the record as a whole

even    if     [the    court]       might     have    decided        differently    as       an

original matter.”             New Cingular Wireless PCS, LLC v. Fairfax

Cnty. Bd. of Supervisors, 674 F.3d 270, 274 (4th Cir. 2012)

(quoting AT&T Wireless PCS, Inc. v. City Council of Va. Beach,

155    F.3d    423,    430    (4th    Cir.    1998)      (internal      quotation       marks

omitted)); see also AT&T Wireless PCS, Inc. v. Winston-Salem

Zoning Bd. of Adjustment, 172 F.3d 307, 314 (4th Cir. 1999).                                 On

the other hand, if the action alleges that the state or local

                                              12
government violated any of the other statutory limitations on

its regulatory authority, the court decides the issue de novo.

See   47    U.S.C.        §    332(c)(7)(B)(v);             see   also    Second       Generation

Props., L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir.

2002)      (“Unlike       the      substantial         evidence     issue,       the    issue      of

whether [a board] has prohibited or effectively prohibited the

provision       of   wireless        services          is   determined      de    novo       by   the

district        court”);       VoiceStream        Minneapolis,           Inc.    v.    St.    Croix

Cnty., 342 F.3d 818, 833 n.6 (7th Cir. 2003) (applying same

standard).

        With these principles in hand, we turn to the issues raised

by the parties on appeal.


                                              III

        The Board contends on appeal that the district court erred

in    ordering       it       to   grant   T-Mobile           permits     to     construct        the

facility at the Silo Site in Lovettsville on the basis that the

Board illegally relied on the environmental effects of radio

frequency emissions.                 See 47 U.S.C. § 332(c)(7)(B)(iv).                            The

Board argues that this reason, albeit illegal, was given by only

one Board member and therefore was “not binding on the Board as

a whole.”         The Board also argues that even if this reason were

binding on it, its decision to deny the application was also

based      on    valid        reasons      that        were    sufficient        to    deny       the


                                                  13
application,     and   that      therefore    the    court’s    injunction       was

simply punishment for the inclusion of an illegal reason.

     At    its   October   17,    2011   meeting,     the   Board     rejected    T-

Mobile’s    application     for    the    Silo   Site,      citing    the   silo’s

“significant      structural       presence”        and     related     aesthetic

complaints.      At the suggestion of Supervisor Miller, the Board

also included as a reason for rejection the antenna’s “negative

environmental impact.”           As Supervisor Miller explained, “We've

had speaker after speaker come in here and talk to us about

their concerns of being exposed to radiation from an evolving,

dynamic technology.”          With particular relevance to the issue

before us, in proposing his amendment, Supervisor Miller told

the Board that it was made “notwithstanding the prohibition on

what I’m going to propose [i]n the Telecommunications Act of

1996.”

     Although the district court concluded that the aesthetic

reasons the Board gave for denying T-Mobile’s application were

supported by substantial evidence, it also concluded that the

Board nonetheless impermissibly relied, “at least in part,” on

the environmental effects of radio frequency emissions.                          The

court noted that Supervisor Miller

     even commented that the Board and other local
     governing bodies deny wireless facility applications
     on the prohibited basis of environmental impact but
     cite permissible reasons as subterfuge for their true
     concerns.   Despite Supervisor Miller’s admission to

                                         14
      violating federal law, the Board finally adopted his
      proposed amendment by a 7-to-2 vote.

Loudoun Cnty., 903 F. Supp. 2d at 409 (citation omitted).                               The

court refused to rule that the valid reasons given by the Board

to deny T-Mobile’s application should allow it to overlook the

invalid    reason     because      the     Board’s     decision       to     include    the

illegal reason was deliberate, and any remand to allow the Board

to   reform    its   reasons       would    only      contribute       to    the   Board’s

subterfuge:

      The evidence before the Court urges the conclusion
      that a remand would result in the Board simply
      justifying denial of the Stephens Silo application by
      citing the same permissible reasons listed in the
      written decision challenged in this action. The Court
      is not satisfied that this decision would be valid
      under the Telecommunications Act, particularly in
      light of Supervisor Miller’s comment that the Board
      falsely   cites   lawful  reasons   as    pretexts   for
      unlawfully denying permit applications and the Board’s
      silent approval of Supervisor Miller’s proposal.       A
      remand would simply invite the Board to violate the §
      332(c)(7)(B) again while concealing its violation with
      false    justifications    for    denying     T-Mobile’s
      application.

Loudoun    Cnty.,    903     F.    Supp.   2d    at    412.      In    support     of   its

holding,      the    court    also       noted     that   the      record      contained

substantial     evidence      to    support      approval     of      the    application,

pointing to the County Planning Commission’s recommendation that

the Board approve the proposed facility based on its staff’s

finding that “the interior location and stealth design of the

proposed    facility       were    in    conformance      with     the      Comprehensive



                                            15
Plan     and    sensitive        to   the    surrounding         rural   agricultural

landscape.”       Id. at 411 (internal quotation marks omitted).

       Based on our review of the record, we conclude that the

district court correctly held that the Board’s basis for its

decision       violated    the    prohibition          against    regulating      on    the

basis of radio frequency emissions.

       First, the record shows that Supervisor Miller’s comments

during    the    Board     meeting    were       not    isolated,   either       from   the

evidence before the Board or from the Board’s own views.                                The

record shows that discussions of health concerns were prevalent

throughout the several hearings.                   On July 11, 2011, the Board

questioned a representative of T-Mobile about the transmission

wattage of the antenna at the Silo Site and whether the signal

would    be    “optimized”       in   such    a   way    that    would   increase       the

radiation       exposure    level.          At    the    same    hearing,    a    citizen

testified that her two boys and “other children . . . [would] be

affected by the electromagnetic radiation.”                         And in light of

these comments about “health and safety,” a T-Mobile employee

offered to address the safety concerns of the citizens.

       Again     at   a   September     21,       2011    hearing   to   discuss        the

application, Supervisor York stated:

       But I do have a question because I hear we are
       concerned about the radio waves and the possibility of
       health issues, which I don’t even think we have the
       ability to consider under FCC rules.       But having
       give[n] that, now I am hearing the limit to three

                                             16
     users [on the proposed monopole].      Are there more
     radio wave impacts for health issues with each user on
     a tower?   In other words, if you limit to one, is it
     different than if you have five users on a tower or is
     it the same no matter what?

A T-Mobile representative responded that there would be some

increase in radio frequency emissions with an increase in the

number of telecommunications providers using the tower but that

the increase would not present a health risk.

     Finally, at the October 17, 2011 Board meeting, Supervisor

Miller successfully requested that radio frequency emissions be

given as a reason for denying the permits.   As he explained:

     We’ve had speaker after speaker come in here and talk
     to us about their concerns of being exposed to
     radiation from an evolving, dynamic technology.

                          *     *     *

     Unless these applications are going to be reviewed and
     voted on by the Congress of the United States, they
     have done the opposite of occupy the field by
     depriving the level of government that does have to
     review and vote on these applications the right to
     consider something that our direct constituents have
     asked us to look at.      Governments at our level all
     over the country do the same thing when they decide
     that’s   the  reason   to   turn   down one   of  these
     applications: They lie. They give a reason that’s on
     the legal list when that’s not what’s on their mind.

     I want this decided in a court of law that will be
     asked the question, Do we have the right to look at
     something that Congress closed its eyes to 15 years
     ago and in the context of an evolving technology where
     frequencies change, power levels change, radiation
     patterns change, and studies have been made available
     since the decision was made that there are risks to
     being exposed this close.



                               17
When    Supervisor            Miller    made      a     motion     to    include        the   health

effects       of    radiation          as     a       reason     for     denying        T-Mobile’s

application, the Board added the reason to the motion to deny

the application and voted 7 to 2 to carry the motion.                                            The

written       denial      given    by       the     Board      specifically         included     the

health risk reason.

       Based       on    this    record,       it      is   thus   indisputable           that   the

Board    as    a    whole       regulated         on    the    basis     of    radio     frequency

emissions, a prohibited basis under the Act.                                   See 47 U.S.C. §

332(c)(7)(B)(iv).               This explicit statutory prohibition against

regulating         the    placement,          construction,             and    modification      of

wireless facilities “on the basis of the environmental effects

of radio frequency emissions” is a limitation imposed by the Act

on the Board’s authority.                   And the fact that the Board relied on

valid    reasons         to    support      its       decision     does       not   immunize     its

violation of a statutory limitation.                             As noted by the Supreme

Court,    each          subsection       in       §     332(c)(7)(B)          is    a    “specific

limitation[] on the traditional authority of state and local

governments         to        regulate       the        placement,        construction,          and

modification of [wireless] facilities.”                             City of Ranchos Palos

Verdes, 544 U.S. at 115 (2005).                         We thus conclude that the fact

that the Board gave valid reasons for its decision, which by

themselves would be sufficient, does not immunize it from its

violation of the statutory limitation.

                                                   18
      We    also    agree      with    the        district     court       that   in   the

circumstances presented -- where radio frequency emissions were

a genuine and substantial concern of the Board and where the

County Planning Commission, when considering factors other than

radio frequency emissions, found the Silo Site application in

compliance      with    the    existing           criteria    for     evaluating       such

applications -- the matter should not be remanded to the Board.

The district court properly interpreted the record in concluding

that while the Board would, on remand, omit its concerns over

radiation when giving reasons for denial of the application, the

radiation    concerns       would     nonetheless          persist    as   part   of   the

decisionmaking         process.         To        reject     the     district     court’s

conclusions in the circumstances presented in this case would

mock Congress’s prohibition against the use of radio frequency

emissions as a basis for regulating wireless facilities when

those emissions were in compliance with FCC regulations.                           See 47

U.S.C. § 332(c)(7)(B)(iv).

      The Board devotes a substantial portion of its brief on

appeal to noting that it gave legitimate reasons for denying T-

Mobile’s Planning Commission permit and that only its denial of

the   special      exception      included        improper     environmental       health

concerns.     It thus argues that the environmental reasons had no

effect on the ultimate decision because T-Mobile would have been

ineligible to obtain a special exception without first obtaining

                                             19
a commission permit.            Yet the Board did not reject the special

exception on the basis that T-Mobile was ineligible for one.

        While the Board’s technical description of its procedure

may be accurate, the district court correctly concluded that the

Board denied T-Mobile’s application in one regulatory action.

It conducted its hearings on both the permit and the special

exception simultaneously, receiving the comments of citizens in

connection with both; it addressed one motion when articulating

the reasons for denying T-Mobile’s application; and it issued

one decision for both, even though it did, in its written notice

of that decision, separate the reasons for denying the permit

and the special exception.               That formality, however, did not

change       the   fact   that    the    Board      was       regulating    T-Mobile’s

placement of the antenna at the Silo Site on the basis of the

environmental effects of radio frequency emissions.

       The    Telecommunications        Act      does   not     limit   particularized

local    procedural       mechanisms;       it    limits      all   local   regulatory

authority, providing that “[n]o State or local government . . .

may regulate the placement, construction, and modification of

personal       wireless    service      facilities         on    the    basis   of    the

environmental effects of radio frequency emissions,” by whatever

means.       47 U.S.C. § 332(c)(7)(B)(iv) (emphasis added).                     Thus, in

this    case,      regardless    of   the     mechanism         employed,   the      Board

regulated the placement of T-Mobile’s proposed facility based on

                                            20
radio frequency emissions, and its argument assigning reasons to

one mechanism for denial and not the other does not justify its

violation of the limitation.

       Because we affirm the district court’s injunction directing

the Board to grant the necessary permits for the Silo Site, we

need      not    address      T-Mobile’s      arguments     challenging        the

sufficiency of the other evidence given by the Board for its

rejection of T-Mobile’s application.


                                         IV

       On its cross-appeal, T-Mobile contends that the district

court erred in affirming the Board’s denial of its application

to construct a wireless facility at the Bell Tower Site.                        It

argues    (1)    that   the    Board’s    decision   was    not    supported    by

substantial        evidence,       as     required     by     47     U.S.C.      §

332(c)(7)(B)(iii); (2) that the decision effectively prohibited

T-Mobile    from   providing       its   customers   with   personal   wireless

service, in violation of § 332(c)(7)(B)(i)(II); and (3) that the

decision was made “on the basis of the environmental effects of

radio frequency emissions,” in violation of § 332(c)(7)(B)(iv).

Before    we    address    these    arguments,   however,     we   address     the

Board’s    contention      that    T-Mobile    did   not    have   Article     III

standing to challenge in court the Board’s decision on the Bell

Tower Site.


                                         21
                                            A

        The Board’s standing argument is based on its contention

that T-Mobile did not have any property interest in the Bell

Tower Site to vindicate.            See Warth v. Seldin, 422 U.S. 490, 498

(1975) (holding that to have Article III standing, the plaintiff

must have “a personal stake in the outcome of the controversy”);

see also Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000) (noting that standing requires

a plaintiff to have suffered an injury that “will be redressed

by a favorable decision”).                The Board’s position rests on the

fact that T-Mobile’s original written agreement with the Church

covered the placement of a flagpole on its property, which the

Planning Commission rejected, and that the Church and T-Mobile

never modified the agreement to give T-Mobile a right to place a

bell tower on the property, as ultimately proposed.                        The Board

argues that even if the court were to find that the Board’s

decision denying the Bell Tower application was unlawful and

subsequently were to grant T-Mobile injunctive relief, T-Mobile

would    still   not    be   able    to    build     its    facility     without   the

consent of the Church.              Accordingly, the Board concludes, the

court had no ability to redress T-Mobile’s injuries, as required

for standing.

        The   Board’s   argument,         however,    is    based   on    an   overly

restrictive      view   of   the     interests       that    T-Mobile     sought    to

                                           22
vindicate in court.            While the written agreement with the Church

did indeed anticipate an antenna disguised as a flagpole, it

also anticipated revisions to the plan.                             Moreover, the Church

agreed     to   cooperate        with   T-Mobile        in    the    development           of    any

revised     plan    and    did    so    throughout           the    application          process.

When     T-Mobile      first      proposed    a     bell       tower,          in   lieu       of   a

flagpole,       a   representative           of    the        Church       sent      an        email

indicating      that      they    “like[d]        the    idea       of     a    bell      tower.”

Similarly,      when      further       refinements           of     the       proposal         were

forwarded to the Church, the representative indicated that “it

looks good to us.”          Representatives of the Church also attended

Planning Commission meetings in support of T-Mobile’s Bell Tower

Site application, and the officially designated representative

of the Church, who had conducted the negotiations with T-Mobile,

later submitted an affidavit stating that “the current design of

the proposed wireless facility, which the Church has approved,

is   a    freestanding      structure        with       the    appearance           of     a    bell

tower.”     (Emphasis added).

         T-Mobile expended substantial time and money in pursuing

the Bell Tower Site application, and it certainly would not have

done so if it had any reason to believe that it could not have

benefited from the effort.              We conclude that it had a sufficient

interest in the Bell Tower Site and in the outcome of its permit



                                             23
application process to give it standing to challenge in court

the Board’s denial of its application.


                                            B

      On the merits of T-Mobile’s challenge of the Board’s Bell

Tower decision, T-Mobile argues first that the Board did not

have substantial evidence in the record to support its decision,

thus violating § 332(c)(7)(B)(iii).                 We disagree.

      The record contains the testimony of numerous citizens in

the community, as well as citizen petitions and emails, stating

their strong opposition to the construction of the Bell Tower

facility.     The residents noted that the tower would be out of

proportion    with    the    surrounding        natural      environment;    that    it

would    diminish    the    value    of     their     properties;    and    that    the

machinery used to support the operation of the tower, such as

generators,    would       introduce      unwanted     noise.       These    concerns

constituted a legitimate basis for the Board’s denial of the

application.        See New Cingular Wireless, 674 F.3d at 274 (“[A]

proposed    telecommunication            facility’s    negative     impact    on    the

neighborhood    may       support    a    finding     of   substantial      evidence”

(internal quotation marks omitted)); City Council of Virginia

Beach, 155 F.3d at 427 (upholding rejection based on “preserving

the     character    of     the     neighborhood       and     avoiding     aesthetic

blight”).


                                           24
       T-Mobile       contends,       however,         that        these       aesthetic

considerations were not legitimate in this case because existing

zoning at the site already authorized the Church to construct a

bell tower for its own use up to a height of 74 feet.                          It argues

that because the county’s zoning rules would accept the visual

impact   of    a    similar   bell    tower      without      a    telecommunications

antenna within it, it was not legitimate to reject T-Mobile’s

bell tower based on visual impact.                But the fact that the Church

would not need a special exception to construct a similar bell

tower without a telecommunications facility in it does not imply

that   citizens      may   not     have   legitimate       objections      to       such    a

tower.       Moreover, T-Mobile fails to recognize that any zoning

decision reflects a balance between the benefit provided by the

facility      and   the    aesthetic      harm    caused,         and   thus    a    local

government might be willing to tolerate what is aesthetically

displeasing for one type of use but not for another.

       The    district     court    did   not    err   in     concluding       that       the

Board’s aesthetic reasons had “substantial support in the record

as a whole.”        New Cingular Wireless, 674 F.3d at 275.


                                           C

                                1
       T-Mobile next argues that the Board’s denial of its Bell

Tower Site application had the effect of prohibiting it from

providing      personal       wireless     service,         in     violation         of     §

                                          25
332(c)(7)(B)(i)(II)                  (“The        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”).                          The district court rejected T-

Mobile’s argument because T-Mobile failed to carry its burden of

showing       “an      effective               absence        of    coverage,”         failed        to

demonstrate a “lack of reasonable alternative sites,” and failed

to    show    that    further            efforts       for    alternative        sites      would   be

“fruitless.”

       To     show    that       a       local    government        regulation        or    decision

“prohibit[s]”         service             or     has     “the      effect       of    prohibiting”

service,      the     telecommunications                 provider     may       demonstrate     that

the    regulation           calls          for    the        rejection      of       all    wireless

facilities -- i.e., that “a local governing body has a general

policy       that    effectively            guarantees         rejection        of    all    wireless

facility applications.”                    T-Mobile Northeast LLC v. Fairfax Cnty.

Bd. of Supervisors, 672 F.3d 259, 266 (4th Cir. 2012).                                        Or, if

the local government rejects a facility at a single site, the

telecommunications provider may demonstrate that the rejection

was    “tantamount          to       a    general      prohibition         of    service.”          Id.

(internal quotation marks omitted).                             To make that showing, the

telecommunications provider must demonstrate (1) that there is

an “effective absence of coverage” in the area surrounding the

                                                    26
proposed facility, and (2) that there is a “lack of reasonable

alternative         sites         to     provide        coverage”        or     that        “further

reasonable efforts to gain approval for alternative facilities

would be ‘fruitless.’”                   Id. at 268 (citing Albemarle Cnty., 211

F.3d at 87-88).              This burden is “substantial and is particularly

heavy      when     .    .    .    the      [telecommunications           provider]          already

provides some level of wireless service to the area.”                                  Id.

          The “effective absence of coverage” does not mean a total

absence; it may mean coverage containing significant gaps.                                         See

Albemarle Cnty., 211 F.3d at 87-88.                            This cannot, however, be

defined       metrically           by       simply      looking      at        the     geographic

percentage of coverage or the percentage of dropped calls.                                          It

is    a    contextual        term      that    must     take     into     consideration            the

purposes       of   the      Telecommunications            Act    itself.            See    City    of

Rancho Palos Verdes, 544 U.S. at 115.                          The        Telecommunications

Act       announces       that      among      its      purposes        are     the        goals    of

“promot[ing]            competition”;         “secur[ing]        .   .    .    higher        quality

services        for       American           telecommunications               consumers”;          and

“encourag[ing]           the      rapid     deployment      of    new     telecommunications

technologies.”            Pub. Law. No. 104-104, 110 Stat. 56, 56 (1996).

We    should      therefore        not      read    §   332(c)(7)        to    frustrate       these

goals.       See City of Rancho Palos Verdes, 544 U.S. at 115.                                 While

§     332(c)(7)(A)             preserves           state    and      local           authorities’

traditional         authority          to    regulate      the    design        and    siting       of

                                                   27
wireless facilities, the express limitations of § 332(c)(7)(B)

promote      the    purposes        of     securing         higher     quality       wireless

services      and   encouraging          new    technology.           See    also     City    of

Rancho Palos Verdes, 544 U.S. at 115.

       The   technology        of   10    years       ago   may   have      only    supported

wireless service that had substantial gaps in coverage and high

dropped      call     rates.        But    the       technology      of     today    supports

increased wireless coverage with reduced rates of dropped calls.

On this trajectory, the technology of tomorrow may support 100%

coverage with no dropped calls, and the focus may instead be on

subtler      issues    about    the       nature      and   strength        of    signals    for

particular uses.           The Telecommunications Act clearly intends to

encourage this technological development and, to that end, to

protect such development from interference from state and local

governments         when    approving           the     design       and         location     of

facilities.         This is manifested in § 332(c)(7)(B).                            Thus, in

construing          the     level          of        service         protected         by      §

332(c)(7)(B)(i)(II),           we    must       take    a   contextual           approach    and

cannot rely on any specific formula.                          See Fairfax Cnty., 672

F.3d   at    267    (observing       that       “reviewing     courts       should     not    be

constrained by any specific formulation, but should conduct a

fact-based analysis of the record, as contemplated by the Act”).




                                                28
                                              2

        Even though we affirm the Board’s decision on the ground

that     T-Mobile      failed    to    show        that     there       was     a    lack       of

alternative sites from which to provide coverage or that further

efforts to gain approval for alternative facilities would be

fruitless -- as we explain below -- we nonetheless also address

T-Mobile’s effort to establish an effective absence of coverage

at the Bell Tower Site.           This issue is one that was at the core

of the parties’ arguments and, even with our affirmance on the

basis of the alternative-sites issue, the issue of effective

coverage      remains    open     as     T-Mobile         makes    efforts          to    pursue

facilities      at    alternative      sites       in     the    same    area       and    again

attempts to demonstrate an effective absence of coverage.

        In   this    case,    T-Mobile    provided         evidence      that       it    had    a

dropped call rate of 1.82% in the area of the Bell Tower Site

and an access failure rate of 2.8% in buildings within that

area.        The district court, noting that “[t]he Fourth Circuit

Court    of    Appeals    has    not   directly           resolved      the   question          of

precisely what minimum level of wireless service is adequate

under subparagraph B(i)(II),” relied primarily on these dropped-

call rates in holding that T-Mobile failed to meet its burden of

demonstrating a question of fact as to its absence of coverage.

But    providing      coverage   may     be       more    than    simply      ensuring      low

dropped-call         rates.      T-Mobile          also     provided       evidence         from

                                           29
“advanced computer propagation modeling” and “actual drive test

data”    of    what   its    expert     called    a   “significant    gap”       in    in-

building coverage in the area of the Bell Tower Site, an area

consisting of “approximately 1.4 square miles,” in which there

are “approximately 10,536 residents.”                 Its expert testified that

this level of signal strength effectively prohibited it from

providing       “acceptable”       personal      wireless      service    inside        of

buildings.        The expert witness testified that consumers demand

to be able to reliably make and maintain wireless calls, and in

some cases, to access wireless data service, within their homes

and     offices    and      that   if    T-Mobile     lacks     sufficient       signal

strength to reliably provide service in buildings, it is not,

from a consumer’s perspective, providing service.

       In     contrast,     the    Board’s       expert   conducted       a    separate

computer      propagation      modeling      study,    using    different       methods

than T-Mobile, and found fewer gaps in service than T-Mobile

did.     We are not in a position to assess the relative merits of

those studies here, but the Board’s expert acknowledged that “if

you accept T-Mobile’s definition of reliable and if you accept

their methodology at arriving at their definitions of signal

strength threshold, then . . . there are areas around . . . the

Church site, that do not have reliable in-building service at

some locations at some time.”                When asked directly whether she

disagreed      with   T-Mobile’s        conclusion     that    it   was       unable   to

                                           30
provide reliable in-building service around the Church site, the

Board’s     expert   witness   responded,      “I     think       that    is    an    open

question.”

       We conclude that this evidence is sufficient to create at

least a factual question about the effective absence of coverage

at the Bell Tower Site and therefore that the district court

should not have resolved that question against T-Mobile as a

matter of law.        See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 255 (1986).

                                        3

       As we have already indicated, T-Mobile failed to satisfy

the second prong for showing an effective absence of coverage at

a particular site -- that is, it failed to show that there was a

lack   of   reasonable    alternative        sites    from        which    to     provide

coverage or that “further reasonable efforts to gain approval

for alternative facilities would have been fruitless.”                          Fairfax

Cnty., 672 F.3d at 266.

       T-Mobile claimed that any alternative sites were inadequate

because they were not of sufficient height.                        But it conceded

that   constructing     multiple   antennas      at    reduced         heights       would

“provide     some    improvement   of    coverage       .     .    .     within      their

respective areas.”        The Board’s expert witness went further and

identified     numerous    other   sites       capable        of       providing      the

enhancement of service desired by T-Mobile, including both new

                                        31
and existing structures.               And she asserted that antennas at a

combination of two sites -- one to the northeast of the Bell

Tower Site and another to the southwest of the Site -- would

provide better service than one alone at the Bell Tower Site.

While       T-Mobile    did     dispute        the    efficacy       of    many       of    the

alternative         sites   separately,         it     failed      to     show       that   the

alternative         sites     would,      in     the       aggregate,          not     provide

sufficient coverage.

        The district court also determined that T-Mobile failed to

show     that    attempting      to     place        its    wireless       facilities       at

alternative sites would have been “fruitless.”                          We agree.

       The    Board    identified       alternative          sites      that     “would     not

require the construction of free-standing monopoles or towers,

but     would    require       the    collocation           of    T-Mobile’s          wireless

facilities on existing buildings, a preferred location under the

County’s Telecom Plan.”              Based on our review of the record, we

do not believe that the district court erred in its finding that

“T-Mobile [had] cite[d] no provision in the Zoning Ordinance or

Comprehensive        Plan     suggesting       that    any       efforts    to       collocate

wireless facilities on the existing structures . . . would be

‘fruitless.’”         T-Mobile, 903 F. Supp. 2d at 402.

       We    thus    conclude    that     on    this       record,      T-Mobile      did   not

carry its substantial burden of demonstrating that alternative

sites were not available to remedy the deficiency in coverage

                                           32
that it had identified.                 Accordingly, we affirm the district

court’s conclusion that the Board’s denial of the application

for the Bell Tower Site did not cause an effective prohibition

of service in the area.


                                               D

      Finally, T-Mobile contends that the Board made its decision

regarding     the     Bell     Tower    Site       in   part    on   the   basis    of    the

environmental effects of radio frequency emissions, in violation

of § 332(c)(7)(B)(iv).               It argues that the “overwhelming focus

of the public comment both explicitly and indirectly centered on

the   fears     of    radio    frequency       emissions”        and   that   “the    Board

denied    the        Bell    Tower     Site        based   on     residents’       concerns

regarding the health effects of RF emissions, while concealing

that reason behind the veil of ‘visual impact.’”

      The record shows that citizens did voice objections to the

Bell Tower Site on the basis of health concerns.                              But the Act

does not prohibit citizens from expressing such concerns; it

prohibits the Board’s acting on them.                          See T-Mobile Northeast

LLC v. City Council of Newport News, 674 F.3d 380, 390 (4th Cir.

2012).    Moreover, the record also shows that citizens objected

for   other     reasons,       all     of   which       were    legally    valid.        They

worried about reductions in the value of their properties; they

pointed       out       that     other         local       communities         prohibited


                                              33
telecommunications           towers       in       residential       areas;       and     they

articulated specific aesthetic complaints.

       While the record does indicate that one Board member voiced

concerns      about        environmental            health      effects        during      the

application        process,       there     is      no    evidence      that     the     Board

discussed including health effects as a reason for denying T-

Mobile’s application.              Nor did the Board’s written order refer

to radio frequency emissions as a reason for its decision.                                 At

bottom, unlike the evidence presented in connection with the

Silo Site, there is simply no evidence to indicate that the

Board    relied      on    radio     frequency           emissions    in   reaching        its

decision on the Bell Tower Site, and T-Mobile’s argument can

only be speculation.             Accordingly, we reject it.


                                               V

       In sum, we conclude that the Board’s decision to deny T-

Mobile’s      Bell        Tower     Site       application        was      supported        by

substantial evidence; did not have the effect of prohibiting the

provision     of      personal          wireless      services       in    view     of    the

possibility of other alternatives; and was not made on the basis

of health concerns about radio frequency emissions.                               And as to

the Silo Site, we conclude that while the aesthetic concerns

that    the   Board       gave    for    denying      T-Mobile’s      application         were

supported     by    substantial          evidence,        its   decision    to    base     the


                                               34
denial    of   T-Mobile’s     application       on    improper    environmental

concerns about radio frequency emissions was prohibited by the

Act.      A    remand   would   not      eliminate     those     concerns   from

consideration of T-Mobile’s application.

       Accordingly,     the   judgment     of   the    district     court   with

respect to both Sites is

                                                                      AFFIRMED.




                                      35
AGEE, Circuit Judge, concurring:

       I     agree     that      we   should          affirm     the     district     court’s

judgment.       However, I write separately to underscore that we

need   not     and    do    not     reach    and       decide    one     particular      issue:

whether the district court correctly determined the effective-

absence-of-coverage issue.

       To    affirm     the       district       court’s        judgment    on     T-Mobile’s

effective-prohibition claim, it is enough for us to say that

there were reasonable alternative sites and efforts to secure

permits for those sites would not have been fruitless.                               By going

further, we “stray into the practice of advisory opinion-making,

solving      questions       that     do    not       actually    require    answering       in

order to resolve the matters before [us].”                               Karsten v. Kaiser

Found. Health Plan of Mid-Atl. States, 36 F.3d 8, 11 (4th Cir.

1994).        Yet    “the     oldest       and    most    consistent        thread    in   the

federal law of justiciability is that the federal courts will

not give advisory opinions.”                     Flast v. Cohen, 392 U.S. 83, 96

(1968) (quotation marks omitted).

       Respectfully,          then,    I    do    not    join     Part    IV.C.2    of    Judge

Niemeyer’s opinion or the portion of Part IV.C.1 of his opinion

that       addresses       the    effective-absence-of-coverage                  issue.      I




                                                 36
conclude   that   these   sections   –-   which   are   not   part   of   the

opinion of the Court -- offer an advisory opinion. *




     *
       Even if those portions were part of the opinion of the
Court, they would still be nothing more than non-binding dicta.
See Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir.
1999) (“Dictum is [a] statement in a judicial opinion that could
have been deleted without seriously impairing the analytical
foundations of the holding -- that, being peripheral, may not
have received the full and careful consideration of the court
that uttered it.” (quotation marks omitted)).


                                     37
WYNN, Circuit Judge, concurring in part and dissenting in part:

      While I otherwise agree with the majority opinion, I cannot

agree with Part III or with the portion of Part IV.C.1 that

discusses        the   “effective         absence          of    coverage”       aspect      of    a

telecommunications provider’s burden.                             As noted on the cover

page of the opinion, Part IV.C.2 does not constitute the opinion

of   this    court.            The   discussion            in     Part    IV.C.1          regarding

effective absence of coverage is, therefore, dicta because we do

not decide whether T-Mobile established an effective absence of

coverage.          Put    differently,          because          we    affirm       the    Board’s

decision on the ground that T-Mobile failed to show both a lack

of alternative sites and that further efforts to gain approval

of   alternative          sites      would       be        fruitless,         the     discussion

pertaining to the effective absence of coverage in Part IV.C.1

is   unnecessary         to    the   holding         of    this       case.      Therefore,        I

decline to join Part IV.C.1’s dicta regarding effective absence

of coverage.

      Regarding Part III of the majority opinion, I must dissent

because     it    fails       to   fully   consider             the    significance         of   two

separate     and         distinct        land        use        entitlements—the           special

exception permit and the commission permit.                              Although the Board

of   Supervisors         (“Board”)       improperly         denied       the     Stephens        Silo

special     exception         permit     based       on     its       concerns      about    radio

frequency        emissions,        the    Board       provided         distinct      and     valid

                                                38
reasons    for       denying           the   Stephens     Silo     commission        permit.

Neither the majority nor the district court has sufficiently

explained how it is that the improper special exception denial

somehow    taints          the    separate       and   distinct       commission      permit

denial, which alone would have been sufficient to bar T-Mobile

from constructing its Stephens Silo project.                            Because I would

reverse the district court’s order that the Board grant both

permits,       I    must    respectfully         dissent    from      Part    III    of    the

majority opinion.



                                               I.

     Focusing on the facts that pertain to the Stephens Silo

site, T-Mobile wanted to construct a wireless telecommunications

facility on a farm in Lovettsville, Loudoun County, Virginia.

Loudoun County’s land use regulations required two separate land

use entitlements before construction: a “commission permit” and

a “special exception.”

     The Board and the Planning Commission make decisions on

whether    to      grant        such   entitlements.        In     doing     so,    they   are

guided    by       the    policies       and   regulations       in    Loudoun      County’s

Comprehensive            Plan    and    Zoning      Ordinance. 1       Loudoun      County’s


     1
       The State of Virginia requires “every governing body [to]
adopt a comprehensive plan for the territory under its
jurisdiction.” Va. Code Ann. § 15.2-2223(A). The purpose of a


                                               39
Comprehensive Plan contains a Telecommunications Facilities Plan

(“Telecom Plan”), which explains that its overarching goal is

“to encourage improvements in telecommunications services while

mitigating the impacts on . . . residents, nearby land uses,

scenic beauty, and rural heritage.”               J.A. 314.     The Telecom Plan

is     generally        intended     to      “ensure       compatibility         of

telecommunication facilities with nearby land uses” by requiring

collocation of facilities whenever possible, establishing design

criteria     and   removal     provisions,    and    creating    a    process    “by

which an applicant can demonstrate their compliance with these

policies.”     J.A. 314–15.

       The   Telecom    Plan   contains     specific   policies       designed    to

mitigate the visual impact that antennas, towers, and monopoles

have on the “historic character of the rural . . . areas.”                      J.A.

318.     Of note here, “the County prefers locating new antennas on

existing     towers,    monopoles    or   other     tall   structures[,]”        and

“[w]hen existing structures cannot be used, new monopoles or

towers    should   be   sited    within     the   right-of-way       for   overhead




comprehensive   plan    is   to  “guid[e]  and  accomplish[]   a
coordinated,   adjusted    and  harmonious development  of   the
territory” to “best promote the health, safety, morals, order,
convenience, prosperity and general welfare of the inhabitants .
. . .” Id. A zoning ordinance is a method of implementing the
comprehensive plan. Id. § 15.2-2224(B)(4).


                                       40
utility      transmission            lines    where        the       visual    impact      of      an

additional tall structure would be minimal.”                            J.A. 318.

       All    telecommunication              facilities         in    Loudoun        County     must

meet    specified          criteria     to     demonstrate            compliance       with      the

Comprehensive Plan.              The procedural mechanism for ensuring such

compliance is the commission permit, which certifies that the

proposed project is “substantially in accord with the adopted

Comprehensive Plan.”              Loudoun Cnty., Va. Zoning Ordinance § 6-

1101(A).      In some zoning districts, telecommunication facilities

are permitted “by right[.]”                   But in other zoning districts, the

Board has determined that telecommunication facilities “have the

potential for a deleterious impact upon the health, safety, and

welfare      of    the     public[.]”          Id.    §§       5-618(B),      6-1301.         If    a

telecommunication              facility       is     proposed          in     such     a   zoning

district,         the    proponent      must       obtain       a    special    exception          in

addition to a commission permit.                     Id. § 5-618(B)(2).               Proponents

of   projects           that   are    subject        to    a     special      exception         must

demonstrate compliance with criteria beyond those required for a

commission permit.              Id. § 5-618(B)(3).                  Ultimately, whether to

grant a special exception is in the Board’s discretion.                                       Id. §

6-1301.

       The    Stephens         Silo    site,       located       in    the    AR-1     district,

required a special exception in addition to a commission permit.

When the Stephens Silo proposal came before the Board on October

                                               41
17, 2011, the Board voted to overturn the Planning Commission’s

approval   of    the       commission   permit    and   to    deny   T-Mobile’s

application     for    a   special   exception.     The      Board   articulated

different reasons for the denials:

     Commission Permit

          1. The proposed project is not fully consistent
     with the land use policies of the Revised General Plan
     and Strategic Land [U]se Plan for Telecommunications
     Facilities   (Telecommunications   Plan).      The   1996
     Strategic   Land   Use   Plan   for    Telecommunications
     Facilities     recommends     any      new     commercial
     telecommunication antennas in the rural areas first
     locate on existing towers, buildings, or other tall
     structures within a two (2) mile radius. . . .
          2. Currently there are existing agricultural
     silos within a two (2) mile radius on which to locate
     telecommunications   antennas    which    are   preferred
     locations as outlined in the Telecommunications Plan.

     Special Exception

          1. The proposed design and siting has not
     mitigated its significant structural presence, thus
     creating an unnecessary visual impact on surrounding
     properties.

          2. The proposed silo height of 90-feet does not
     blend with the natural and built environment of the
     surrounding area. The height and appearance is not in
     keeping with the silos and other farm structures in
     the immediate vicinity.

          3. A denial does not have the effect of
     prohibiting   the   provision  of   personal   wireless
     services in this area of the County, with current
     service available from T-Mobile and others. . . .

     Supervisor Miller made a friendly amendment to include
     negative environmental impact as the fourth reason for
     denial of the SPEX 2010-0020.

J.A. 1180–81.


                                        42
                                        II.

     Thus, the Board articulated separate and distinct reasons

for denying each permit.             Regarding the commission permit, the

reasons given for its denial are directly related to the rural

location policies contained in the Telecom Plan.                    In denying

that permit, the Board did not exercise discretion; rather, it

made a finding that T-Mobile’s proposal failed to comply with

the Comprehensive Plan—a prerequisite to obtaining a commission

permit. 2     And because T-Mobile could not construct the facility

without first obtaining both permits, the lack of a commission

permit      would   have   been   sufficient   to   preclude   T-Mobile   from

building its Stephens Silo project.

     The      majority     opinion     dismisses    this   nuance    regarding

Loudoun County’s permitting procedures as a mere “formality.”

However, I must agree with the County that T-Mobile could not


     2
        The majority opinion and the district court find it
significant that the Board overturned the Planning Commission’s
approval of the commission permit.          But this fact is
unremarkable for two reasons. First, the Zoning Ordinance makes
clear that the Board has the authority to overturn decisions of
the Planning Commission. Loudoun Cnty., Va. Zoning Ordinance §
6-1104.    Second, T-Mobile had justified its decision not to
locate its facilities on nearby silos on the bases that the
nearby property was in foreclosure and that efforts to negotiate
with the owner were “to no avail.”    J.A. 1511.   But the Board
knew that the property had emerged from foreclosure, and T-
Mobile had made no attempt to negotiate with the new owners.
Thus, T-Mobile failed to demonstrate to the Board’s satisfaction
that it used its best efforts to comply with the Comprehensive
Plan’s rural location policies.


                                        43
construct its facility without the commission permit and that

the   denial    of   the    special   exception     was      thus    “superfluous.”

Appellant’s Br.at 37.          And neither the district court nor the

majority   opinion     has    explained     how    it   is    that    the   improper

“superfluous” denial tainted or in any way impacted the proper

and supported commission permit denial.

      In sum, I agree with the majority opinion regarding the

Board’s denial of the special exception.                  That denial—based on

concerns       about       radio   frequency        emissions,         which    the

Telecommunications Act unequivocally places beyond consideration

by local governments—was improper.                However, I fail to see how

that invalid denial necessarily taints the proper denial of the

separate, distinct, and additionally required commission permit—

especially when the district court held that the County’s denial

of the commission permit was supported by substantial evidence. 3

      Therefore, I must respectfully dissent from that part of

the majority opinion that affirms the district court’s order

      3
        The majority opinion and the district court express
concerns regarding the effectiveness of remanding this matter to
the Board.    However, such concerns are present whenever the
Court orders relief, and nothing suggests that Loudoun County
would flout an order of this Court.    Assuming otherwise at the
expense of local procedures places us in the position of
substituting our judgment for that of the local planning agency
and “sitting as a zoning board of appeals[.]”        Pomponio v.
Fauquier Cnty. Bd. of Supervisors, 21 F.3d 1319, 1327 (4th Cir.
1994) (en banc) (overruled on other grounds by Quackenbush v.
Allstate Ins. Co., 517 U.S. 706 (1996)). The job of making land
use decisions is not ours; it belongs solely to local officials.


                                       44
forcing Loudoun County to grant T-Mobile a commission permit for

the   Stephens   Silo   site.   And    because   Part   IV.C.2   does   not

constitute the opinion of this court, I also decline to join the

portion of Part IV.C.1 that discusses the “effective absence of

coverage” aspect of a telecommunications provider’s burden.




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