PETERSBURG CELLULAR PARTNERSHIP, d/b/a 360° Communications Company, Plaintiff-Appellee, United States of America, Intervenor, v. BOARD OF SUPERVISORS OF NOTTOWAY COUNTY, Defendant-Appellant, 205 F.3d 688

Reversed and remanded by published opinion. Judge NIEMEYER wrote an opinion, Parts I and II in which Judge KING concurred. Judge WILDENER wrote an opinion concurring in the judgement. Judge KING wrote a dissenting opinion. OPINION PER CURIAM: After Nottoway County, Virginia, denied 360° Communications Company a conditional use permit to erect a 199-foot wireless communications tower, the district court issued a writ of mandamus directing the County’s Board of Supervisors to issue the permit. The district court reversed the County’s decision after applying the “substantial evidence” standard imposed on the County’s zoning procedures by § 704(

a) of the Telecommunications Act of 1996. On appeal, Nottoway County contends that its decision to deny the permit was indeed supported by “substantial evidence” within the meaning of the Telecommunications Act and that, in any event, the requirement that it apply a federal standard in making its zoning decisions violates the Tenth Amendment to the United States Constitution. On the issue of whether Nottoway County’s decision to deny the permit was supported by “substantial evidence,” as required by § 704(

a) of the Telecommunications Act, Judge Niemeyer and Judge King agree with the district court that the County’s decision is not supported by substantial evidence for the reasons given in

Part I and

Part II of Judge Niemeyer’s opinion, constituting the opinion for the court. Judge Widener dissents on this issue, concluding that the County’s decision to deny the permit was supported by “substantial evidence.” Because, however, Judge Niemeyer concludes that the federally imposed standard authorizing a state or local legislative body to deny a permit only on substantial evidence violates the Tenth Amendment, he votes to reverse the judgment of the district court.

Judge Widener concurs in this judgment, without reaching the constitutional issue, because he concludes that the district court erred in reversing the Board based on the evidence. Judge King dissents from this judgment, concluding that § 704(

a) of the Telecommunications Act does not violate the Tenth Amendment. In accordance with the foregoing, the judgment of the district court is reversed, and this case is remanded to the district court with instructions to vacate its writ of mandamus. NIEMEYER, Circuit Judge: While we agree with the district court, as discussed in Parts I and II, that Notto-way County’s decision to deny the permit was not supported by “substantial evidence” as required by § 704(

a) of the Telecommunications Act, I vote to reverse because the federally imposed standard authorizing a state or local legislative body to deny a permit only on substantial evidence violates the Tenth Amendment. I Petersburg Cellular Partnership, doing business as 360° Communications Company (“360° Communications”), submitted a zoning application for a “conditional use permit” to the zoning administrator of Nottoway County, Virginia, to erect a 199-foot wireless communications tower on a piece of commercially-zoned private property on U.S. Route 460, near its intersection with Virginia State Route 669.

The erection of the tower would, under the County’s law, require the issuance of a conditional use permit. The proposed tower would stand 75 feet from the nearest property line, 300 feet from the nearest residence, and 2 miles from a small airstrip. The Nottoway County zoning administrator published notice in the local newspaper of public hearings on the application, to be held before the Nottoway County Planning Commission on April 14, 1998, and the Nottoway County Board of Supervisors on April 16, 1998.

At the Planning Commission hearing, an unspecified number of citizens “questioned flight patterns” for airplanes using the nearby airstrip. Nonetheless, the Commission unanimously recommended approval of a use permit subject to three conditions: (1) approval by the Federal Aviation Administration (“FAA”), (2) free access by Nottoway County to the tower for emergency broadcasting, and (3) the absence of interference with television reception. At the hearing before the Board of Supervisors two days later, three county residents expressed opposition to the proposed tower.

Another resident telephoned a member of the Board to convey her opposition. Their comments generally concerned the tower’s possible effect on airplanes using the nearby airstrip, the extent to which the tower might be an attractive nuisance to children, and the possibility that the tower might collapse. One resident, who lived on U.S. Route 460, stated: [I]f there’s a light on [the tower] it[can] confuse the pilots — if there isn’t a light on it, then that pilot, when he comes in, he could hit the tower.... Another thing for the 460 people — it is an eyesore to have it there when we don’t need it there....

If lightning or something was to strike it, how do we know part of it wouldn’t hit 460? Some would hit this ladfy’s] house right back here' — she has small children. It wouldn’t affect me that much but if an airplane was to hit the tower it would affect a lot of us so I’m opposed to it completely. Another resident stated: The tower from where their last stake is to my property line is 75 ft. It is less than 300 ft. to my house. I’m opposed to it.... [Pilots will] hit the tower whether it has a light on it or not. I don’t want it that close to my property line....

I’m just opposed to it — it’s too close to the houses. Even if the FAA does approve it with or without the lights, it’s still a danger because you’ve got pilots out there — I’m not saying all pilots — but there are some pilots that will get cocky and want to show off and try to do stunts. What i[f] they try to do it near the tower?

Wreck — it explodes — -it’s going to land on my house and my neighbor’s house, and I don’t think y’all want that on your shoulders — the Board of Supervisors or 360° Communications. í|{ í¡í >{{ ‡ H* % [Djon’t put [the tower] so close to where there is a lot of residences and where there are children. Boys are going to be boys and when they get away from Mama and Daddy they are going to explore and do what they want to do. Sooner or later they’ll try to climb the tower. I don’t want it that close to my children.

And also if they put a light on it how do you know that one of the pilots — not all of them but some of them have been known to be tired — mistake that light for the landing — if they are a new pilot to the area — and try to land the plane going down there. Instead of knowing it’s a tower. Representatives of 360° Communications responded to each of the concerns expressed at the hearing. They stated that the FAA would not approve the tower unless it was safe for planes, and if the FAA, or even if the Board, wanted a light on the tower, 360° Communications would provide one.

They also pointed out that there would be an eight-foot security fence around the tower, which would keep curious children away from it, and that the tower would not be electrified. Finally, they explained that the tower was designed to withstand the highest wind on record for the area, even if covered with a half inch of ice, and that even if the tower were to collapse, it would collapse in on itself. Moreover, if it were to fall over, it would only hit dirt or trees, not buildings on adjacent property.

Following the testimony, the Board of Supervisors voted to table 360° Communications’ application pending FAA evaluation. After the FAA issued approval of the proposed tower, the Board of Supervisors met on July 16, 1998, to decide whether to issue the requested permit. No one testified at this meeting. The Board voted unanimously to deny the permit. While the Board gave 360° Communications no explanation in a brief rejection letter, individual board members briefly explained their votes at the July 16 meeting.

One member stated that “the people in the neighborhood did not want ... the structure there.” Another said, “I think this, this [is] close to people that live there and they do object to it. I think there is other land that could be obtained.” And another said, “I’ve talked to my people in that area and they, they don’t want it.” One member questioned rhetorically, “are we going to allow our citizens to [take] this crap?” Relying on § 704(

a) of the Telecommunications Act of 1996, 360° Communications filed this action to reverse the Board of Supervisors’ decision and to obtain “a mandatory injunction enforcing the terms of the Telecommunications Act by ordering the approval of the plaintiffs application.” On cross-motions for

summary judgment, the district court issued a writ of mandamus ordering that “defendant Board of Supervisors of Nottoway County approve plaintiffs March 20, 1998 application for a conditional use permit” and directing it to do so “at its next regularly scheduled meeting ... in no event ... later than thirty (30) days after entry of this writ.” Petersburg Cellular Partnership v. Board of Supervisors, 29 F.Supp.2d 701, 707 (E.D.Va.1998).

The district court explained that 360° Communications “dispelled” all of the “unsubstantiated” safety concerns, leaving the Board with only “general antagonism” expressed by three residents in person and one by telephone. Id. at 706. The court concluded, “were courts to sanction the denial of such permits based upon this substantively vague and numerically insubstantial opposition, the Telecommunications Act would be effectively nullified.” Id. The “modest” and “speculative record” before the Board, the court held, was “insufficient as a matter of law.” Id. The Board of Supervisors filed this appeal, arguing that

(1) Nottoway County’s denial of the permit was in fact based on substantial evidence and (2) the statutory requirement, contained in § 704(

a) of the Telecommunications Act, that the County can only deny a permit based on substantial evidence violates the Tenth Amendment. The United States intervened to defend the constitutionality of the Act. See 28 U.S.C. § 2403(a). II Congress enacted the Telecommunications Act of 1996 “to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” Pub.L. No. 104-104, 110 Stat. 56 (1996).

Section 704(

a) of the Act, which is aimed in part at making it easier for cellular telephone companies to obtain permits from state and local authorities to erect communications facilities, provides that state and local governments may not prevent construction of such a facility unless their decision is “in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii).

Section 704(

a) also authorizes an applicant to seek enforcement of this provision in either state or federal court. 47 U.S.C. § 332(c)(7)(B)(v).

Nottoway County contends that the district court erred in concluding that its decision to deny the conditional use permit in this case was not supported by “substantial evidence contained in a written record.” First, Nottoway County argues that the district court failed to appreciate the nature of evidence appropriately received and considered in a legislative, rather than adjudicative, context, pointing out that the zoning permit process does not engage in “reconstructing a past event,” as is done in court. Rather, the process is a legislative one, involving predictions, value preferences, and policy judgments.

Thus, the County contends that the district court should have accepted as substantial evidence not only the views of citizens in the community but also the value preferences of elected public officials when making legislative decisions, quoting Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (“It is not infrequent that the available data do not settle a regulatory issue, and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion”).

Alternatively, Nottoway County argues that even taking into account only the views of the local residents, its Board’s decision was supported by substantial evidence. In support of this argument, the County cites our recent decision in AT & T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423 (4th Cir.1998), in which we relied on the repeated and widespread opposition of citizens to find that the Virginia Beach City Council’s decision to deny permission for the construction of two towers was supported by substantial evidence.

Nottoway County’s argument thus presents us with the initial question of whether the County Board’s decision in this case was “supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). The term “substantial evidence” has a long-standing meaning in federal law. While it is more than a mere scintilla of evidence, it is less than a preponderance. See Virginia Beach, 155 F.3d at 430. It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Universal Camera v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951)).

In Virginia Beach, we stated that when reviewing the decision of a local elected body, “a reasonable mind” means the mind of a reasonable legislator. Id. And in discussing how “reasonable” legislators act, we noted that “[i]t is not only proper but even expected that a legislature and its members will consider the views of their constituents to be particularly compelling forms of evidence.” Id.

Recognizing this principle, we upheld the decision of the Virginia Beach City Council to deny the permit application for two cellular towers that would have been placed on the premises of a church in a heavily wooded, residential area. The City Council had based its rejection, in part, on the substantial opposition from local residents.

Approximately 800 individuals had signed petitions opposing the towers because they feared the towers would damage the character of their residentially-zoned neighborhood which contained no significant commercial development, no commercial antenna towers, and no above-ground power lines. We held that this overwhelming opposition to towers, based on the likelihood that the towers would have substantially changed the character of the neighborhood, amounted to “substantial evidence” and was therefore a lawful basis for the City Council’s decision to deny the permit. Id. at 431.

Following Virginia Beach, we held in AT & T Wireless PCS, Inc. v. Winston-Salem Zoning Board, 172 F.3d 307 (4th Cir.1999), that the Winston-Salem Zoning Board had “substantial evidence” to deny a special use permit for the construction of a 148-foot antenna tower next to the James Hanes House, a historical site built in 1932 and surrounded by low-density, single-home, residential property with no commercial property nearby. The communications company itself described the proposed site was “an unspoiled serene tract of land in the midst of a bustling city.” Id. at 310.

Seeking to preserve the character of their neighborhood, approximately 150 local residents objected to the tower, either in person or by petition, noting that the proposed tower would have a negative impact on “the aesthetics of the neighborhood,” “the desirability of the neighborhood,” “residential property values,” and “the historical and cultural value of the Hanes House.” Id. at 311. This case presents circumstances substantially and materially different from those in Virginia Beach and Winston-Salem.

Instead of opposition from hundreds of residents seeking to maintain the character of the residential neighborhood in which they live, we have four individuals— three who testified in person and one who made a telephone call to a Board member — seeking to prevent construction of a tower in a commercially-zoned area based on speculative safety concerns. Moreover, the residents’ objections in this case were readily addressed by objective features of the proposed tower.

While one woman did state in passing that the tower would be an “eyesore,” the principal reasons she and others gave for opposition were: (1) that pilots will be confused and either crash planes into or try to land planes on the tower, (2) that “boys [will] be boys” and climb the tower, and (3) that the tower will collapse onto people or homes. In Virginia Beach and Winston-Salem, we held that the widespread expression of concerns about the change that a commercial communications tower would have on the residential character of a neighborhood amounted to substantial evidence.

The concerns expressed were objectively reasonable because they were based on known experience about the effects that commercial uses can have on a residential neighborhood. If a legislative body denies a permit based on the reasonably-founded concerns of the community, then undoubtedly there is “substantial evidence” to support the body’s decision. If, however, the concerns expressed by a community are objectively unreasonable, such as concerns based upon conjecture or speculation, then they lack probative value and will not amount to substantial evidence.

The number of persons expressing concerns, standing alone, does not make evidence substantial, but it might be relevant to the reasonableness of the concern. In this case, the concerns expressed by a few citizens in Nottoway County can be readily classified as irrational and therefore insubstantial. The first concern expressed in this case was that, regardless of whether the tower had a light on it, planes would crash into or attempt to land on the tower.

While we agree that a plane hitting the tower would present a serious problem, we do not believe that there is any rational basis to conclude that such a crash would be likely. While the initial proposal did not include a light on the tower and therefore might legitimately have tended to support this fear, 360° Communications subsequently agreed to put a light on the tower, and the FAA approved the tower with a light on it. In addition, the tower height of 199 feet and proximity of two miles to the airstrip are not a reasonable basis for fear of a plane crash.

We cannot presume, in the absence of evidence otherwise, that the FAA would approve this tower if its proposed site posed a risk of it being hit by airplanes. In addition, it is a matter of common knowledge that numerous structures in the United States rise more than 200 feet, and rarely are any struck by airplanes. Indeed, the witnesses in this case referred to the existence of a 700-foot tower in the area without evidence of any airplane crashes.

In the same vein, one resident expressed concern that a pilot might “mistake the light [on the tower] for the landing [strip] — if they are a new pilot to the area — and try to land the plane going down there.” Again, we cannot find a rational basis for this objection. The air traffic control system in the United States is sophisticated, and the licensing requirements for pilots are comprehensive, serving, among other purposes, to prevent pilot error of the type feared by this resident. Again, we emphasize that the FAA has approved the tower with the light on it.

It surely would not have done so if the light was likely to present the illusion of a landing strip. Making a second type of objection, a resident expressed the concern that “[b]oys are going to be boys and ... they are going to explore and do what they want to do[, including] climb[ing] the tower.” While we cannot dispute the tautological observation that “boys are going to be boys,” we do believe that the proposal in this case fully addresses the concern for children’s safety.

First, 360° Communications indicated that it would be placing an eight-foot security fence around the tower to keep children from climbing it. Second, 360° Communications pointed out that the tower would not be electrified. Third, because the proposed site is near the intersection of two highways, motorists passing by would undoubtedly deter the adventures of children who might attempt illegally to break into the tower site. Finally, a resident expressed the concern that the tower could collapse onto homes or people. Again, we do not believe that this fear is rationally founded.

First, the record contains no evidence indicating that there is any reasonable likelihood of the proposed tower collapsing since it was designed to withstand the highest winds ever recorded at the site, even when covered with a half inch of ice. Second, the tower was designed to collapse in on itself, thus presenting a danger to no one. Finally, even if the 199-foot tower were to fall outward, it physically could not reach the nearest house, which is 300 feet away.

A possibility of the tower collapsing and hitting a person or a home in these circumstances is so extremely remote as to pose only a speculative concern. In sum, we cannot accept any of the residents’ concerns as reasonable. As the district court correctly stated: “[T]he record aptly illustrates that these perceived hazards were the result of unfounded conjecture and baseless speculation. The record provides irrefutable evidence that each of these concerns, though undoubtedly genuine, was dispelled by 360° Communications’ representatives and the FAA.” Petersburg Cellular, 29 F.Supp.2d at 706.

Because we conclude that a “reasonable legislator” would not base his decision upon the irrational concerns of a few constituents, we conclude that the Nottoway County Board of Supervisors’ decision was not based upon substantial evidence contained in the record and thus that the County’s denial of the requested permit was not consistent with federal law. See 47 U.S.C. § 332(c)(7)(B)(iii). Ill Nottoway County contends that if enforcement of the federal standard imposed by § 704(

a) of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii), requires the county to grant a zoning permit to 360° Communications, which it had otherwise determined not to do, then the federally imposed standard violates the Tenth Amendment because it coerces local governments to employ “intrusive federal rules” in their zoning and land use processes.

The County argues that § 704(a) “crosses the line between encouragement and coercion of local governing bodies to apply federal requirements.” Rejecting Nottoway County’s constitutional' argument made in the County’s motion to amend the district court’s ruling, the district court reasoned that the Telecommunications Act does not commandeer Notto-way County’s legislative process because “the Act affords local governing bodies the choice of rendering decisions in accord with this relatively modest federal standard or having their actions preempted by federal regulation.” Nottoway County maintains, however, that nothing in the language of the Act provides it a choice; it must employ the standards Congress mandated in deciding the siting of wireless communication facilities.

This uninvited intrusion into traditional state and local zoning authority, it argues, leaves the state or locality “no choice at all,” in violation of New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). 360° Communications, urging a finding that the Act is constitutional, argues that Congress had the power, without violating the Tenth Amendment, to preempt state and local zoning decisions, but it chose not to on the condition that the state and local zoning boards comply with federal standards.

It explains: In other words, while not preempting state and local zoning authorities entirely, Congress did preempt state and local zoning authorities to a limited extent, by enacting five specific limitations on local regulatory conduct, each of which is specifically denominated as such in the Act, and each of which constitutes an express preemption of state and local authority. As the district court noted, therefore, the deal which has been struck is both clear and constitutional: Either the local governing bodies comply with these conditions, or complete preemption will follow.

The United States, intervening to defend the constitutionality of the Act, likewise argues that § 704(a) “simply preempts state law” and does not violate the principles set forth in New York and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). It relies on other provisions of § 704(

a) that are preemptive to argue that the provision imposing sitting standards on local boards is also preemptive. Alternatively, the United States argues that the Tenth Amendment does not prohibit the requirement that local officials apply a federal standard in making state zoning decisions because “state administrative decisionmak-ers who form part of a state’s adjudicatory machinery are bound, like state judges, to apply federal law as well as state law in making their determinations,” citing Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947).

A The Telecommunications Act of 1996 seeks to promote a more efficient wireless communications system for consumers, and to this end, it facilitates the construction of communications facilities. Providers of cellular telephone service undoubtedly require a broad and far-reaching network of communications towers and other facilities. Even though local zoning boards do not directly regulate wireless communications service, their tower siting decisions have had a considerable impact on the development of wireless communications.

Indeed, in enacting the Telecommunications Act, Congress found that “State and local requirements, siting and zoning decisions” had “created an inconsistent and, at times, conflicting patchwork of requirements” that was “inhibiting the deployment” of wireless communications services. H.R. Rep. No. 104-204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61. To address this problem, the House version of the Telecommunications Act would have given authority to the Federal Communications Commission to regulate directly the siting of towers.

The Senate version, on the other hand, would have allowed local governing bodies to continue exercising that responsibility. The Conference Committee decided against complete federal preemption and federal regulation and added § 704 of the Act as a compromise. In its report, the conference committee stated: The Conference agreement creates a new § 704 which prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters except in limited circumstances set forth in the conference agreement. H.R. Conf. Rep.

No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222. Although § 704(

a) of the Telecommunications Act, as finally enacted, provides that nothing in the Act “shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities,” 47 U.S.C. § 332(c)(7)(A), this general preservation of local authority is limited by provisions requiring that a state or local government “act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed,” 47 U.S.C. § 332(c)(7)(B)(ii), and also requiring that any decision denying such a request “be in writing and supported by substantial evidence contained in a written record,” 47 U.S.C. § 332(c)(7)(B)(iii).

The decision of any local authority is made reviewable in either a state or federal court which must hear and decide the case “on an expedited basis.” 47 U.S.C. § 332(e)(7)(B)(v). In addition to requiring state and local governments to apply these standards and procedures, the Act denies these local governments any authority to regulate the siting of communications towers based on “environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission’s regulations concerning such emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).

B We must now determine whether Congress can constitutionally leave the zoning and permit authority for siting communications towers with states and local governments and, at the same time, forbid states and local governments from denying a permit to construct a personal wireless service facility except when that decision is rendered in writing and supported by “substantial evidence contained in a written record,” as required by 47 U.S.C. § 332(c)(7)(B)(iii).

We begin our analysis by reviewing Not-toway County’s contention that the federal standard contained in 47 U.S.C. § 332(c) (7) (B)(iii) alters the standard otherwise applied by zoning boards in Virginia for making zoning decisions. Our review of Virginia law appears to support this claim. In Virginia, both the adoption of zoning regulations and the granting or denying of conditional use permits are legislative acts governed by the same principles and subject to the same standard of review. See County Bd. of Arlington County v. Bratic, 237 Va. 221, 377 S.E.2d 368, 372 (1989); City Council of Virginia Beach v.

Harrell, 236 Va. 99, 372 S.E.2d 139, 141 (1988). Local boards have broad discretion in taking zoning actions in the exercise of their police powers. See Harrell, 372 S.E.2d at 141. As a consequence, a local government’s denial of a conditional use permit need not be supported by any evidence but “is presumed to be valid and will not be disturbed by a court absent clear proof from the challenging party that the action is unreasonable, arbitrary, and bears no reasonable relation to the public health, safety, morals, or general welfare.” Id.

And any decision “supported by evidence sufficient to make the question ‘fairly debatable’ ” must be sustained. Id. This standard would appear to be more deferential to local board action than the standard in the Telecommunications Act that limits the local board, allowing denial of a conditional use permit only when the board’s decision is supported by substantial evidence. See 47 U.S.C. § 332(c)(7)(B)(iii).

Indeed, under Virginia law, when a zoning decision is challenged in court, the legislative body need not present any evidence to support its decision unless and until the challenger shows that (1) the denial was unreasonable and (2) his proposed use was reasonable. See Harrell, 372 S.E.2d at 141. And even then, if the legislative body shows the propriety of its action was fairly debatable, the decision is sustained. See id. In addition to changing the circumstances under which a local board can deny a permit, the Telecommunications Act would also appear to alter the nature of permissible judicial intervention.

In this case, the district court, acting by authority of the Telecommunications Act, actually ordered the local legislative body to issue the conditional use permit. See Petersburg Cellular, 29 F.Supp.2d at 707. If a Virginia state court, however, were to find that a zoning decision could not be sustained, the court’s only power under Virginia law would be to remand to the local body for reconsideration of the decision in its legislative discretion. Under Virginia law, the courts have “no power to rezone land to any classification or to order a legislative body to do so.” City of Richmond v.

Randall, 215 Va. 506, 211 S.E.2d 56, 61 (1975). Those decisions, under Virginia law, are considered “legislative prerogative[s].” Id. Whether the federal standard in fact alters the state or local legislative process or outcomes, however, is not essential to the question of whether the imposition of the standard violates the Tenth Amendment. Imposition of any federal standard on a state or local body’s legislative process, even if “relatively modest” as the district court characterized it, has at least two substantial, detrimental effects on federalism.

First, the very act of imposition, without a meaningful opportunity for a state to opt out, compromises state and local sovereignty. And second, regardless of the relative effects of the federal and local standard, the imposition of a federal standard on a local board confuses the electorate as to which governmental unit, federal or local, is to be accountable for a legislative decision made by the local board. These two effects alone threaten fundamental constitutional values.

They undermine the structure which assures the division of power and thereby preserves our fundamental liberties, and they compromise the effective exercise of democratic power, that power which is reserved to the people. We address these consequences in order. The Tenth Amendment assures the system of dual sovereignty inherent in the constitutional structure, by reserving to the states or the people the powers not delegated by the Constitution to the United States. See Printz v. United States, 521 U.S. 898, 918-19, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).

The federalist constitutional structure depends on this separation and independence of sovereigns, see Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1990), and rejects the theory that the states are auxiliary to the federal government’s exercise of power.

Indeed, the dual-sovereignty structure of the Constitution carefully preserves two, concurrent sovereigns over the people: [T]he Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people — who were, in Hamilton’s words, “the only proper objects of government.” Printz, 521 U.S. at 919-20, 117 S.Ct. 2365 (quoting The Federalist No. 15); see also Alden v.

Maine, 527 U.S. 706, 119 S.Ct. 2240, 2265, 144 L.Ed.2d 636 (1999) (“By splitting the atom of sovereignty, the founders established two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it” (internal quotation marks and citations omitted)). Accordingly, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York v. United States, 505 U.S. 144, 162, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992).

So important and fundamental are these requirements that they admit of no balancing of interests. See Printz, 521 U.S. at 932, 117 S.Ct. 2365. When a congressional enactment compromises “the structural framework of dual sovereignty,” the compromise, regardless of its degree, results in a fundamental defect, and “no comparative assessment of the various interests can overcome [it].” Id. Consequently, the command that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program” is categorical. Id. at 933, 117 S.Ct. 2365 (quoting New York, 505 U.S. at 188, 112 S.Ct. 2408).

The necessity that this rule be categorical is demonstrated by the important values it preserves. As the Court in Gregory observed: It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; it makes government more responsive by putting the States in competition for a mobile citizenry. Gregory, 501 U.S. at 458, 111 S.Ct. 2395 (citation omitted).

Further, by assuring a division of power, the rule provides an overarching check on the abuse of governmental power thereby ensuring “the protection of our fundamental liberties.” Id. (internal quotation marks and citations omitted). Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Id.

Moreover, when the federal government commandeers state and local legislative processes to carry out its own goals, not only is the federal power aggrandized and the state power enslaved, but also the lines of separation are blurred, causing a loss of accountability to the people and confusion by them.

When a local legislative body acts under a standard imposed by the federal government, even if the federal standard is comparable in effect to state standards, a significant risk arises that the citizens of the community will not know whether the legislative act is the product of Congress or of their local legislature. This confusion inevitably frustrates a normal democratic response. See Steven G. Calabresi, Textualism and the Counter-majoritarian Difficulty, 66 Geo. Wash.

L.Rev. 1373, 1391 (1998) (arguing that “judicial enforcement of the jurisdictional lines of democratic government is potentially democracy enhancing [because] [m]a-jority rule or democracy presupposes that one knows and respects the relevant jurisdictional lines”).

This concern formed an important basis for the Supreme Court’s holding in New York: [W]here the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.... [Wjhere the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.

Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empt-ed by federal regulation. New York, 505 U.S. at 168-69, 112 S.Ct. 2408 (citations omitted). It is, of course, well understood that Congress may, through the exercise of enumerated powers, enact federal laws that state courts must apply. See Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947).

And when a federal law conflicts with a state law, the Supremacy Clause of the Constitution requires that the federal law preempt the state law. See U.S. Const. Art. VI, cl. 2; Gregory, 501 U.S. at 460, 111 S.Ct. 2395; Worm v. American Cyanamid Co., 970 F.2d 1301, 1304 (4th Cir.1992). Indeed, in the proper exercise of an enumerated federal power, Congress can preemptively legislate in an entire field, excluding any state activity therein. See Worm, 970 F.2d at 1304.

Moreover, if Congress desires that the states themselves become involved in a suggested federal regulatory scheme, it may employ incentives to encourage the states to do so. See New York, 505 U.S. at 171-73, 112 S.Ct. 2408. But it cannot coerce and unilaterally erase the lines of separation. See Printz, 521 U.S. at 932-33, 117 S.Ct. 2365. Accordingly, whether the standards imposed on the state and local governments by the Telecommunications Act are relatively modest instructions cannot become part of the constitutional evaluation.

The Tenth Amendment categorically bars the federal government from compelling state and local governments to administer a federal regulatory program. See New York, 505 U.S. at 188, 112 S.Ct. 2408; see also Printz, 521 U.S. at 932-33, 935, 117 S.Ct. 2365.

Thus, the operative question in this case is whether the federal standards commandeer Nottoway County’s legislative processes, leading to the dire outcomes described above, or whether they permissibly preempt or provide creative incentives. 360° Communications and the United States argue that the procedural requirements imposed by the Telecommunications Act amount to a simple “preemption of state law.” Congress, they argue, has simply preempted any state law that would prevent construction of certain telecommunications equipment in the absence of “substantial evidence.” This argument, however, ignores the fact that this “preemption” involves a prescription for state and local governing bodies to use their zoning and permitting power in a specified way.

Perhaps any congressional instruction to the states can be characterized as preemption. For example, if Congress instructed state or local legislatures on the minimum qualifications of members voting on the siting of federally regulated facilities, or on the percentage of votes needed for approval or denial of such permits, or on the frequency with which the local body must meet to consider such requests, these instructions might be seen as a “preemption” of the legislature’s operating rules.

But it is also this type of “preemption” that would be unconstitutional because it would “commandeer the legislative process,” by coopting potentially unwilling state and local legislative bodies to achieve federal policy goals. New York, 505 U.S. at 176, 112 S.Ct. 2408. 360° Communications and the United States also argue that § 704(

a) of the Telecommunications Act provides state and local governments with a constitutional choice of either (1) deciding the siting of communications facilities in accordance with federal procedural requirements or (2) being preempted by federal law under the Commerce Clause. They maintain that this “choice,” which Judge King’s dissenting opinion “denominate^ ‘conditional preemption,’ ” see infra p. 712, amounts to a constitutionally appropriate inducement to states and local governments to follow federal policy, citing New York, 505 U.S. at 173-74, 112 S.Ct. 2408. But they fail to demonstrate where § 704(

a) provides that “choice.” To the contrary, § 704(

a) unconditionally mandates (1) that a state or local government “act on any [facility siting] request ... within a reasonable period of time,” (2) that any decision denying a request “be in writing,” and (3) that any decision denying a request'be “supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(ii), (iii). No choice is provided, and no threat of preemption is expressed or implied. Nottoway County observes that its only choice would be to abandon the business of land-use regulation and that this is no more a choice than that afforded the states in New York.

In New York, the state of New York was given the choice, under a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985, of either regulating low-level radioactive waste in a manner directed by Congress or “taking title to and possession of the low-level radioactive waste generated within [the state’s] borders and becoming liable for all damages waste generators suffer as a result of the State[’s] failure to do so promptly.” 505 U.S. at 174-75, 112 S.Ct. 2408.

The Supreme Court found this provision to be unconstitutional because each alternative would impose a duty on the states that Congress could not constitutionally impose. The Court stated that Congress “crossed the line distinguishing encouragement from coercion.” Id. at 175, 112 S.Ct. 2408. Such coercion, the Court noted, diminishes the accountability of elected state officials, denying them the ability to “regulate in accordance with the views of the local electorate in matters not preempted.” Id. at 169, 112 S.Ct. 2408. The same principles adhere in this case.

The “choice” suggested — that Nottoway County comply with § 704(

a) of the Telecommunications Act or end its role as a land-use regulator — is no less coercive than the choice offered the states in New York. Indeed, it is not a choice at all. The Telecommunications Act does not suggest it, and it cannot be implied except in an ontological sense: one has a “choice” to avoid obeying a governmental command by ending his own existence.

To suggest that a local governmental body withdraw from land-use regulation and leave the construction of structures in the community to the whims of the market is nothing short of suggesting that it end its existence in one of its most vital aspects. As we have noted repeatedly, “land-use decisions are a core function of local government. Few other municipal functions have such an important and direct impact on the daily, lives of those who live or work in a community.” Gardner v. City of Baltimore, 969 F.2d 63, 67 (4th Cir.1992) (emphasis added); see also Sylvia Dev. Corp. v.

Calvert County, 48 F.3d 810, 828 (4th Cir.1995). If a state, county, or town abandoned its local land-use power to regulate the siting of communications facilities, any number of telecommunications towers and other communications facilities could be erected in the midst of residential neighborhoods, next to schools, or in bucolic natural settings such as in the woods or on top of mountains — areas held in high value by most communities.

Abandoning land use power in this way would put at risk the property value of every home in the jurisdiction and create the possibility that aesthetic quality of every area in the jurisdiction would be destroyed. The abandonment of land use control for towers is not a viable option for state and local governments.

Similar to the option offered to states in New York, the reality underlying this thin veil of “choice” — that Nottoway County must either submit to federal instruction or abdicate its zoning authority over the construction of communications towers, thus allowing them to be built anywhere without local participation, input, or approval — amounts in reality to coercion, not choice. The Constitution does not empower Congress to' subject state and local lawmaking processes to this type of mandate. See New York, 505 U.S. at 162, 112 S.Ct. 2408.

Congress may govern directly the people of a state through laws enacted by Congress and authorized by the Constitution. But it may not govern the states for the purpose of indirectly exacting its will on the people. See Alden, 119 S.Ct. at 2247; Printz, 521 U.S. at 919-20, 117 S.Ct. 2365. Preemption involves the direct federal governance of the people in a way that supersedes concurrent state governance of the same people, not a federal usurpation of state government or a “commandeering” of state legislative or executive processes for federal ends.

See New York, 505 U.S. at 162, 112 S.Ct. 2408 (“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions” (citation omitted)). Requiring direct federal governance of the people also buttresses political accountability in our system of dual sovereignty.

As we have noted above, the rigor of this structure does not preclude a non-coercive arrangement between federal and state sovereigns encouraged by federal incentives or achieved through voluntary cooperation. See id. at 166-69, 112 S.Ct. 2408. But it does preclude the presentation to a state of coercive “choices.” As the United States correctly observes, in the Telecommunications Act Congress did indeed preempt the states’ rights to regulate in certain substantive areas, such as the right to determine the “environmental effects of radio frequency emissions.” See 47 U.S.C. § 332(c)(7)(B)(iv).

But that preemption does not save other provisions that “commandeer” state legislative processes when approving the location of towers. The deliberate choice that Congress made not to preempt, but to use, state legislative processes for siting towers precludes the federal government from instructing the states on how to use then-processes for this purpose. As the Supreme Court has pointed out: States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government....

Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the states to ... administer a federal regulatory program. New York, 505 U.S. at 188, 112 S.Ct. 2408; see also Printz, 521 U.S. at 935, 117 S.Ct. 2365 (explaining that New York’s holding that Congress cannot compel the states to enforce a federal regulatory program extends to Congress’ inability to conscript state officers directly “to administer or enforce a federal regulatory program”).

The United States argues additionally that the Telecommunications Act is merely an announcement of federal law and that state courts and federal courts alike are required to apply that law. Although the United States’ statement of the legal principle is a correct one, see Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947), its application to the circumstances here is misplaced. In Testa the Court held that state courts cannot refuse to apply federal law because they are required to do so under the Supremacy Clause. See id. at 390-91, 393-94, 67 S.Ct. 810; U.S. Const. Art. VI, cl. 2.

But the requirement that state courts apply federal law is materially different from the proposition that state zoning boards use federally mandated standards in their legislative processes. See New York, 505 U.S. at 192, 112 S.Ct. 2408.

While the legislative decision of whether to grant a land use permit might end up in the courts, the decision is “inescapably a political function ... [because] the very essence of elected zoning officials’ responsibility [is] to mediate' between developers, residents, commercial interests, and those who oppose and support growth and development in the community.” Sylvia Development, 48 F.3d at 828. And there can be no doubt that in Virginia this function is legislative and not judicial. See Bratic, 377 S.E.2d at 372.

Finally, both 360° Communications and the United States argue that the Telecommunications Act is constitutional under the holding of FERC v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982). In FERC, the Supreme Court upheld the constitutionality of the Public Utility Regulatory Policies Act of 1978, finding that it contained only the “command” that state utility agencies “consider,” but not necessarily adopt, federal standards as a precondition to continued state regulation of an otherwise preemptible field. See 456 U.S. at 764, 102 S.Ct. 2126.

But in the Telecommunications Act, Congress mandated either application of federal standards or the abdication of all zoning authority over communications facilities. As the Court in FERC was careful to admonish, it “never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” Id. at 761-62, 102 S.Ct. 2126.

Thus, while the statute in FERC mandated “only consideration of federal standards,” 456 U.S. at 764, 102 S.Ct. 2126, the Telecommunications Act effectively requires state and local governments who choose to exercise their core powers of regulating land use to apply a federally mandated standard and process. Moreover, the Supreme Court’s holdings in New York and Printz, both decided after FERC, embrace this ground for distinguishing FERC from this case. See Printz, 521 U.S. at 928-29, 117 S.Ct. 2365; New York, 505 U.S. at 161-62, 112 S.Ct. 2408.

Because application of the “substantial evidence” standard imposed by § 704(

a) of the Telecommunications Act would require us to overrule the will of Nottoway County exercised through its traditional legislative process, we must address the provision’s constitutionality, and for the reasons given, I would hold that this provision of the Act, 47 U.S.C. § 332(c)(7)(B)(iii), “commandeer[s]” the County’s legislative process and is therefore unconstitutional under the Tenth Amendment. See New York, 505 U.S. at 175, 112 S.Ct. 2408.

IV The conclusion that 47 U.S.C. § 382(c)(7)(B)(iii) is unconstitutional does not invalidate the rest of the Telecommunications Act. “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) (internal quotation marks and citations omitted).

The substantial evidence standard imposed by 47 U.S.C. § 332(c)(7)(B)(iii) is part of § 704(a), which encourages the construction of wireless communications facilities, and the construction of such facilities is part of a large and complicated statutory scheme regulating telecommunications.

Requiring communications companies to apply to local boards for siting communications towers and other facilities using local standards for approval will not interfere in a substantial way with the otherwise operative provisions of the Act, and the invalidation of a provision mandating a federal standard will not frustrate the purpose of these other provisions.

As the Supreme Court observed in New York: Common sense suggests that where Congress has enacted a statutory scheme for an obvious purpose, and where Congress has included a series of provisions operating as incentives to achieve that purpose, the invalidation of one of the incentives should not ordinarily cause Congress’ overall intent to be frustrated. New York, 505 U.S. at 186, 112 S.Ct. 2408.

V The purposes served by the Telecommunications Act of 1996 are important to the national interest in making telecommunications more available and efficient, and the power to regulate and promote interstate wireless communications falls well within Congress’ commerce power. Surely, if Congress thought the matter should be the subject of federal law, it could enact a federal law preempting the field and directly regulating the siting of communications towers. We do not question this traditional method of federal regulation.

However, in the area of regulating the location of communications facilities, Congress was understandably reluctant to assert its preemption rights to deprive state and local governments of their important zoning and permit authority. It recognized that erecting telecommunications towers is of significant local interest and can be controversial due to both rational and irrational concerns of residents in the community. Moreover, preserving local legislative processes would make local officials accountable for land use decisions.

Yet, Congress did not wish to cede control over the implementation of its policy of promoting the erection of communications facilities to localities that were often hostile to such facilities. Thus, through a compromise involving a partial preemption approach, it enacted § 704(

a) of the Telecommunications Act, imposing federal standards on state and local legislative processes, thus leaving state and local legislative boards responsible and accountable for any fall-out in making siting decisions. Through this blend of assigned power, Congress apparently believed it could effect a federal policy promoting the erection of telecommunications towers, while preserving local interests in the process. But this particular blend erases the constitutional lines dividing power between the federal and state sovereigns and therefore becomes a categorical violation of the Tenth Amendment.

Comparing 47 U.S.C. § 332(c)(7)(B)(iii) with the statutory provisions at issue in New York and Printz, one might argue that the former amounts to a minimal infringement on a state’s legislative affairs and hence does not present grounds for judicial relief. Such an assertion, however, would reflect a profound misunderstanding of the role of the federal judiciary. New York and Printz, along with a host of other recent decisions, both from the Supreme Court and this circuit, emphasize that vigorous judicial umpiring of the constitutional structure serves to protect the liberty interests of the people.

See, e.g., Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); City of Boeme v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); New York v.

United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 (4th Cir.1999) (en banc); Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir.1999). The federal judiciary cannot abdicate enforcing those guarantees strictly without rejecting the cornerstones upon which the protection of individual liberty rests — federalism, separation of powers, and limited government.

See The Federalist No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961) (stating that “a double security arises to the rights of the people” as a result of the Constitution’s “dividing power] between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments”). Even though we are reluctant to strike down as unconstitutional any provision of legislation, we cannot construe § 332(c)(7)(B)(iii) to be a constitutionally permissible de minimis infringement upon the fundamental constitutional order.

Accordingly, even though we have concluded that the decision of the Nottoway County Board of Supervisors in this case is not supported by “substantial evidence” as mandated by § 704(

a) of the Telecommunications Act, I have also concluded that the imposition of that federal standard on the Board commandeers its legislative process, and therefore 47 U.S.C. § 332(c)(7)(B)(iii) is unconstitutional. We reverse and remand this case to the district court with instructions to vacate its writ of mandamus. REVERSED AND REMANDED WITH INSTRUCTIONS .

Section 704(

a) provides in full: (

a) NATIONAL WIRELESS TELECOMMUNICATIONS SITING POLICY. —

Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph: “

(7) PRESERVATION OF LOCAL ZONING AUTHORITY. — ” "(

A) GENERAL AUTHORITY. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” "(

B) LIMITATIONS. — ” "(

i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof — ” "(

I) shall not unreasonably discriminate among providers of functionally equivalent services; and” "(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” "(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.” "(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” "(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.” "(

v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subpar-agraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by

an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.” “(

C) DEFINITIONS.—For purposes of this paragraph—" “(

i) the term 'personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;” "(ii) the term personal wireless service facilities' means facilities for the provision of personal wireless services; and” “(iii) the term 'unlicensed wireless service’ means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in

section 303(v)).”. Telecommunications Act of 1996, Pub.L. No. 104-104, § 704(a), 110 Slat. 56, 151-52 (1996).