the honorable the judges of the united states court of appeals for the fourth circuit the morning may please the court i'm scott thompson on behalf of t mobile the record in this case contains an contradicted evidence demonstrating that there is adequate site distance for safe ingress and egress at the shepherd of the lutheran church demonstrating that the chief operating officer of the howard county school system has unequivocally stated in writing that the school system will not allow the mobile to install a wireless facility at the glendale high school and demonstrating that team mobile has an effective absence of coverage in a four square mile area and no reasonable alternatives to remedy that absence of coverage accordingly the board's denial in this action of t mobiles application to install a wireless facility at the shepherd of the glen lutheran church is not supported by substantial evidence and is has the effect of prohibiting t mobile from providing wireless service in violation of section three thirty two c seven of the communications act one thing i want to turning to the substantial evidence claim one thing i want to emphasize in this case is what the board did find this is not a case where the board has found that the proposed facility by t mobile is inconsistent with the local neighborhood or in character in fact the board found that the proposed facility meets all of the requirements of the local code except for two for example the board found that the proposed facility will be in harmony with the general plan that its overall intensity and scale are appropriate that it will not hinder or discourage use or development of the surrounding neighborhood it found that the gravel driveway that t mobile it proposes to install will be adequate and it also found that the wireless facility would accommodate multiple users is adequately screen from the public and is stealth all in compliance with section one thirty one of the howard county code so this is not the  the problem the problem is that you know when you are applying for a conditional use permit and the board had two particular requirements  one that you should provide safe access and safe the gress and the others if you should try to locate the facilities on a government reading judge bennett's opinion that you sort of breezed into town and treated the those requirements in a very cavalier way you really you might have gotten what you wanted as you'd taken them even semi seriously but you dealt with them in a cavalier fashion i disagree with your honor i disagree with judge bennett in that characterization the evidence before the board clearly demonstrates that there is on the first point adequate cite distance to allow safe in and you press for example even judge bennett's recognize that a review of the record reflects that there certainly contains substantial mobile's going to have one s u v i'm come by a month for maintenance it will there is an existing driveway that serves the church's parking lot that that is not going to be changed so the question is is there adequate site distance for people to pull parking lot is quite large you can see it in the in the diagrams of at least fifty car parking lot it's a sizable church but the aggressive so just as a good today three thing you could have done to fix that not claim that us in grass is not safe while they saw the boards the board's decision states only that and i'll quote it the board states notwithstanding the fact the proposed use would generate a very low number of vehicle trips the petitioners obligated to demonstrate to driveways location has adequate sight distance for visits to the compound and those in the record in the record from the board from the counties own department planning and zoning is evidence that the site distance to the south to the north east is over two hundred fifty feet and to the south west is over forty cents not adequate no no they don't say it's not out or they say they said that team mobile didn't introduce eviden but yet there did introduce samut but the point is there is evident you are the one that that has the burden here on this particular point your honor show compliance on this particular point the counties code simply says that the board must find that there is adequate site but there is there was evidence before the board including testimony from residents that this particular drug was was near of very busy interface section they call it a troubled intersection of hobson and brentwood road your honor that if i may that testimony had to do with some of the testimony there was concerned t mobile had proposed to install some some additional trees helps screen the facility that was concerned about intersection there it had nothing to do with the ingress and egress at the parking lot itself i would be hard for me to believe it had nothing to do with interest in the grass because it's going to be more attempting to make us into a zoning board of appeals or something like that and you know i think the issue to me i thought you treated those those zoning requirements in a very high handed and cavalier fashion and i can't understand why you wouldn't have introduced some testimony from a traffic engineer that said we don't think there's a problem but if there is here's a way we might resolve it and and the rest and the thing about it is this is not a board that has its backup i mean they had granted any number of applications there's no innate hostility here i think they granted there were six cell phone towers in the vicinity of this and the board this was the only one that they denied and very often we have a situation where board says we're not going to do this we're not going to use and they just dig in and against any cellphone tower whatsoever but that isn't this this is this is a board that has one of the best and most receptive oh approaches to cell phone towers if you just pay the local the the local regulations a little bit of respect  let us know what you think has the burden of proof here and what that is does seems to be some indication that you would would would say that there was no evidence that this was not see or as i think th position should be that you had the burden of proof to show this was a silly excess the burden under section one thirty one b of the of the counties code which has to do with ingress and egress simply says the board must find that they're safe ingress and egress under section one thirty one n it says that the applicant has the burden of demonstrating that it undertook a diligent effort to cite it on a government structure as a general matter obviously  no evidence presented by the board that it's not say the applicant generally has the burden your honor i will concede that in this case there was evidence so you that you did you have the you had the burden in this case yes going saying you you have to go and find you know establish good engineer if you have a birth to show is safe you do those things but if you think all you need to do is just show generally that there's an access and ingress and then the board has this burden of showing under the federal act if this if the board denies it didn't this action the question is was there substantial evidence on the record to support the denial the board claims that there was no evidence about adequacy of sight distance our point is and judge bennett even agreed there is evidence judge bennett called it substantial evidence of the adequacy of the site distance the the question then becomes so ok board what is the grounds for claiming that there's no evidence but we do i get their denial weird we don't even get this if if we determine that you did make the village it was with regard to the government structure and what you did here was a phone call no your honor you didn't it would seem reasonable for you to go in and determine whether this is an adequate site by doing a little bit more of that that there would actually be some type of investigation of some type of report that would come forth and set or that in fact undertaken those villages it's in fact there was your honor mr camber ling it was the site acquisition agent with fourteen years of experience testified that it is standard practice in the industry to make an initial contact if the initial contact is an affirmative no we are not we will not allow you to do this and then we went on the end of the line we don't well in this case your yes your honor in this case mr kember lee's notes containing the identity of the other person were destroyed however after that  response from the people in authority so you could make a record matter of fact i don't receive that you're prejudiced that you can still go back and do their head you are it stand your honor it's not credible fully that the chief operating  the letter clearly reference you want to put it at what you want to put setting up on top of the schoolhouse or do you want to put it out back of the tree or do you want to build a tower somewhere what where you want to do with it of your own is your own property the county that you didn't want to put in the middle of parking lot t operating officer clearly understood well enough to say that they have denied t mobile's desire to install a wireless facility at this school she did not it's not credible to believe that the chief operating officer who is that the officer empowered to these decisions is sending out letters like this c c a you know carbon copy all you do now is a lot on that letter and a and an ambiguous telephone call evidence you could have made a better record you could have made a better record here and there's substantial evidence rule creates a terrific problem for you not context because so much tangible evidence to support the decision of the board means what less than made this record on what your proposal was or what you wanted to do over to school house there's nothing showing that there's a requirement that the mobile make a formal written proposal to the school they've contacted the school what are they if the school says no  them that it's your bird it's i don't like it it's our burden to demonstrate and i'm saying if you want to carry the burden you ought to go down there and make a record on what you're telling asking the school to do and you ought to have a record on what the school is saying do we have a record of the school saying unequivocally that they won't allow t mobile to prefer to install a wireless facility at the ice but wireless facility where any wireless facility at high school she the the letter references says we've denied your good because she said so in the letter proposal we don't know what the proposal was because you don't have a proposal in there but your honor why does it matter what team the the board in the do or don't under the board in the court don't need to understand what the proposal was the right there in the statute it's really you need to respect just just a little bit of respect for these local zoning ordinances and then you head out precedent to earlier cases both  to judge substitute their own judgment with that of the board even if they would decide the matter differently is an original matter so whether you look at how statute look at our opinions of precedent or whether you look at the statute you notice that some respect just a little respect had to be paid to these local zoning norms you're not a mall and paul company you are sophisticated company and you come into this community which has been previously granted application after application after application you give at the back of your hand that's no way to treat people in a locality yahoos whose situation you are going to affect i disagree that the record suggests that mobiles treated the local communities requirements cavalierly they clearly it's and we have there is a record the point here is the board has ignored the evidence before it there is evidence about the site distance that there is evidence in writing that the school system will not allow t mobile to install a facility the question is simply whether there is anything that can contradict that letter from the from the chief operating officer of the school system saying we won't allow the lao t mobile to install of sylvia at the high school i see that i've gone over the time that i  cancel i do and that was actually one matter i wanted to clarify section one thirty one g of the howard county zoning regulations states that the applicant for a conditional use bears the burden of proof in persuasion on all questions of fact to be determined by the board so the application this case t mobile for the burden of proof the production the burden of production and of persuading the board on all questions of fact to be determined by the board including the safe access and also the diligent effort required you agree they need area i don't think that an applicant like t mobile would propose to put up a new tower if they didn't need to improve their coverage in some way i think any deal is that they're trying to prove the coverage they say who calls you get it inside the home can you get it in a car or write it down the road or what that this will the circuit has said it has said a few things in the most recent cases that came out last year of the fairfax county cases this court said that it's a fact specific inquiry and each case the question is whether there has been a prohibition of service under the act and it has instructed district courts to engage in a very sad fact specific analysis the record in answering that question and you're saying th what the outcome here was a determination inclusion that there was a signal in any signal would be selfish well no i don't i don't think that i i guess i disagree with that characterization of of judge bennett's decision is indicate any measurable if this some measurable frequency coverage could be if it's measurable that's good enough doesn't matter whether or not you can get it in a home or get in office or to drop calls in the area from surrounding towers what they do is they catalog a drop call rate and his testimony was that any truck call rate above two percent and this was a drop calls over a three month period over two percent indicates a gap in coverage a significant gap at the time of the expert report t mobile had been arguing that significant gap was the test  second of course in the fairfax county case this court rejected that but in any case they relied on this this testimony that the struck all right indicates a lack of reliable in building and in vehicle and what the evidence could show but in essence judge simply some measurable threat frequency space is sufficient and that doesn't sound like to me that's enough what acknowledge that that judge bennett didn't you know you read the quote he did say that but he went on to say and he talked about the r f expert testimony in this case and he noted the drop call rates he also noted that the r f expert acknowledge that the drop call rate could be a byproduct of the terrain in the area the tree cover them this is a rural area of the county so he you know the r f expert also acknowledged that and actually the record shows that the expert also said that court was that even assuming everything he says is true it's not sufficient to meet every time there's a lot of speed that they need to improve the cell coverage over there i don't think that an applicant would or a company would try to put up a tower if they didn't want anything to g still doesn't it still doesn't get to the nub of your argument which is that the statute gives deference to zoning ordinances ordinances clearly allocate the burden of proof one thirty one point judy talks about conditional uses in the burden of proof it says the applicant for a conditional use shall have the burden of proof right there in the zoning ordinance but your position is that look we've got a good record we're not we understand the shift in electrons from from landlines we understand all that party that had the burden of proof head had had sought to find out had to had done due diligence i guess with respect to the location of the communication facilities on a government structure or it put in some kind of evidence showing that they would be safe access sorry caressed all the board and i think judge when alluded to this and his question all the board has to show is that you fell short on one of those to you give us show us you've used you've tried to respect what we want to do with our zoning laws come in you have the burden of proof give us the evidence let's talk about this but ok seems to me that you two ought to be on the same side that the evidence is that there's a need for telephone service and you and howard county ought to desire to have telephone service in that area it would make it a more attractive place to live i would think it would help the emergency services in particular so you have an interest in getting good telephone service there too they have an interest in their attic economic interest and they should have done a better job so i don't understand why we get the big fights over these things and come up here in my asking a federal appeals court to decide whether to put a tower one of our predecessors here used to refer to him as blum and how or where is he said nobody ever wants what they have to have them if we're going to have to phone service anymore that you all have a mutual interest in that there's a public interest in that a strong public interest agreed your honor there is a very strong public interest in that on the prohibition of service claim to two of the factors are i mean this court has not squarely addressed the level of coverage necessary or the lack of coverage necessary to make out an effective absence of coverage that person but it who would go about as weird make it happen is what i'm trying to figure out here but i didn't and that helps us to understand it if there are static concerns for the reasons you don't want so many and i can understand it is that the problem you  e you actively seeking this i don't know if it brings jobs or what it does but it certainly gives cover the you know what the board wants is is the applicant to follow the regulations a community wants the applicant to follow the regulation that you are not in the question goes back why don't you work this thing out you want the service you just want him to do it the right way and it seems like a lot less time could be expended rather than coming up here and with a i'm an ass tell you how to run your county and run your business when you can kind of figure this out for your citizens yourself we did not the appeal your honor and you know they're eligible to mobile can reapply for this use at this very location and zoning regulations permit that this ruling is without possibly have succeeded in getting cell service out there to people who lead the i don't think just possibly i say very likely what has succeeded because they had succeeded it's the only one you've turned down that's it the whole thing doesn't make sense to me i mean i read this and i read it you allow this to be put up and if they say we need additional information but from their perspective says no it's not going to happen but if the answer right now is that they just not going to allow this then their contention that this is fruitless i have a little bit it doesn't matter whether or not you do just that or not if the answers are already know what the record the record in this case before the board of appeals on that issue on the high school again was that they had just made a phone call they couldn't identify who they talked to  you kind of know how things are going to work out that's a pretty easy answer to find out whether or not they will allow even consider it to be put there on the condition you show it what's the applicant's burden to show that the applicant has not made a proposal to the school board but the point is it's not precluded from showing it in the future they come and they say you know here we are we've done a little more we we've done our due diligence we've talked to the school board we presented team mobile can make some alterations there was a lot of testimony before the hearing board that the antenna could be located on existing structures on one of the th improved cell service could be put on one of the existing cell towers and instead of the need to construct an entirely new one we don't know that either we're in the dark on this but you're point is well you know this is an ongoing process we just need to get to the point where people are willing to talk to engage in the dialogue and try to find out both what's best for the of for the provision of telephone service without disruption to property values in neighborhoods and the other things that that cell towers may present for all we know adjustments and alterations could be made to one of these six existing cell towers that would avoid disruption to a particular neighborhood but you don't get any sense of what's happening i'm less the evidence is put in the record that's right your honor we agree with that at the record was very vague on what the even the proposal was miss morrison who was a consultant for team a bill to testify that the lights at the school had recently put up lights for a football field that the existing lights would be in she called it an ideal location but then all we see is this phone call and then the letter that comes back in this letter is in the context of you know it's the day before the third night of hearings before the board appeals it's put in rebuttal and it  it says here mr hughes which was he was counsel you know for t mo before the port per your request to provide a written statement our response is that we have denied the request to put a cell phone cower on school system property and increases coverage in the area if it places the directional antenna on existing towers within the search range or and you know rather than us dictating this of the outer world what have you just maybe there could be some sort of dialogue between the mobile and and the board about having those directional an the existing towers that might be a solution we you know we don't we don't know but it gets back to this point where the two parties have to engage and i think judge king really put his finger on it when he said want to point out that to the extent that the court believe somehow the team will does this respected or presented some weak presentation the board again as i point out the in with the board found that t mobile had satisfied all of these substantive requirements the board found that this is a proposal that's in harmony with the general plan this is not the letter given you came up short in two respects they they claim credit they fail that's what they claim and that's without prejudice to your undertaking to satisfy their concerns but your honor to address that issue their co ordinates allows us to reapply only after two years so the fact that this litigation is is spread out doesn't change the fact that we could not have immediate involved in the fines involved in taking this if you have been used to try to shore up your case your honor we could not reapply at the time we would have had to wait two years would realise you could've replied but you could have laid the groundwork can call the fire department or the police department it's a it's a problem we agree your honor and the code says that you have to wait two years so i assume that they would say that they're what from the time of your i don't know if it's from the design of the decision or the application  on the board of feels once they deny you you then have to wait two years you can't they can't deny and give you specific history why and you fix it so you don't have an opportunity fix it a l i don't know your i don't believe so to to to that point and to to all the questions that have been asked the board doesn't say you know you could do you know they don't claim that there's as somebody pointed out the the school system has said we're not going to allow this there's testimony that the school system had in fact told another provider eighteen t recently that they also were not going to allow that there's clearly a decision by the school system not to allow any wireless at schools that's not uncommon i mean people let's let's be clear the probable people freak out about you the problem we're having here at least where we've gone as well course and started up and it is a concern you you while it's this whole business that i said why don't you ask the school board to the other side of why don't you just settle this thing or deal with it if you want to service in and the problem seems to be your t mobile you're not a little you do this all the time and how in the world is a company like this go into a county and you rely on a phone call you've got to have done this before you had to have seen it done and you've got to have people who are experts on how to go in and what you are seeking to do it's got to be vast amounts of money involved here money has not been made in two years so what you run the risk is it could be two years where you can come back again why w company from a business perspective take that risk i mean there's clearly a way what's being asked here is not difficult to determine safe access it ingress you can bring in experts you can lay out that that's pretty easy to do it and determine whether that location is available that's a way to do it you don't have to just make a phone call you can spend a lot of money and do an actual investigation to determine and get an answer says  report this is what want to do this we want to locate it is i was going to be and get a board decision says no then you can't do it there i mean that's what really is incredulous about this case your honor it in the point is so there is the experience  seeing mobile the experience of the mobile is that a phone call is standard sloppy if a company does that t mobile we're not talking about a garage operation what a bunch of kids playing with trying to do a little cell operation and you do it all the cases you've got cases all over the place you do it all the time what is this about i don't understand your honor this is the same procedure that the phone call where they confirm that the landlord won't allow a wireless facility has been adequate before it was adequate  a you're testing to see how little you can get away with no your honor they're making an initial inquiry they they contact the landlord in the in the in this case there's testimony that they contacted for example the another church and the church said no there was no written proposal to that church in the board doesn't complain about that the board is picking and choosing where an oral discussion is adequate and not and here we've we've said after the board objected to the oral communication we phone call and they said no he got it i mean it doesn't i don't i don't understand it well no your honor we there is testimony that they did have a team of people and one of them mr campbell in the initial call is to find out whether they're willing to even hear you out again with if they if the unbelievable because any on a job application you know with of a transcript on a resume whether it's you know to a law firm or a clerkship ever is more form absence of signal that's incorrect as judge davis noted in fairfax this court the fourth circuit has not ever found that in fact no other court has reached that extreme position there is expert witness testimony in this case the t mobile has