“Miss the Clock, Lose the Power” – Fourth Circuit Affirms Automatic Approval of Wireless-Tower Applications When Virginia Localities Exceed the 150-Day Statutory Deadline

Introduction

Tillman Infrastructure LLC v. Board of Supervisors of Culpeper County, Virginia concerns a telecom company’s attempt to erect a wireless-communication tower and a county’s failure to decide the requisite conditional-use permit (“CUP”) within the strict timeframe imposed by Va. Code § 15.2-2316.4:1. After the Culpeper County Board of Supervisors (“the Board”) ultimately denied the permit, Tillman sued in federal court alleging violations of both the federal Telecommunications Act of 1996 and Virginia state law.

The United States District Court for the Western District of Virginia granted summary judgment to Tillman, holding that (1) the County’s denial lacked substantial evidence and (2) more importantly, the application had already been deemed approved under state law because the Board failed to act within 150 days. The Board appealed only the state-law holding. In an unpublished but detailed opinion, the Fourth Circuit affirmed, crystallizing two companion rules:

A locality that does not notify the applicant of incompleteness within 10 business days waives that objection; the application becomes “deemed complete.”
If the locality thereafter fails to approve or disapprove the application within 150 days—and no mutual extension exists—the application is automatically “deemed approved.”

Furthermore, any post-submission amendments—such as changing from a lattice to a monopole tower—do not reset the 150-day clock absent a mutually agreed extension. Nor does the court grant the locality a second chance; the appropriate remedy is a declaratory judgment that approval has already occurred by operation of law.

Summary of the Judgment

Writing for a unanimous panel, Judge Rushing held:

April 8, 2021 was the date of receipt of Tillman’s application; the County acknowledged receipt and failed to issue any deficiency notice within 10 business days.
Because no extension was mutually agreed, the statutory 150-day decision window closed on September 5, 2021.
The Board’s October 5, 2021 denial came 30 days too late; by then, the application had been approved automatically.
The district court properly entered a declaratory judgment confirming the application’s approval; the Board retained no further legislative discretion.

Accordingly, the Fourth Circuit affirmed summary judgment for Tillman and left the federal Telecommunications Act claims moot.

Analysis

1. Precedents Cited

Berry v. Board of Supervisors of Fairfax County, 884 S.E.2d 515 (Va. 2023)
Quoted for the principle that a locality “must act within statutorily defined deadline or lose the ability to act at all.”
Commonwealth v. Commonwealth ex rel. Hunter Laboratories, LLC, 817 S.E.2d 318 (Va. 2018)
Cited for textualist statutory-construction canon: courts may not add exceptions or extensions not supplied by the General Assembly.
Marble Technologies, Inc. v. City of Hampton, 690 S.E.2d 84 (Va. 2010) & City of Richmond v. Confrere Club, 387 S.E.2d 471 (Va. 1990)
Both emphasize Dillon‐Rule limitations: localities possess only those powers expressly granted – supporting the conclusion that time-barred localities lack residual discretion.
Federal Telecommunications Act Cases (referenced but not decisive)
47 U.S.C. § 332(c)(7) provides federal substantive and procedural protections but the Fourth Circuit resolved the appeal exclusively on Virginia statutory grounds.

2. Legal Reasoning

Statutory Text Governs Strictly
The court undertook a straightforward textual analysis of § 15.2-2316.4:1. Because the statute is explicit about (i) a 10-day deficiency-notice period and (ii) a 150-day approval period that may be extended only by “mutual agreement,” the panel refused to graft onto the statute any implied tolling or reset mechanism.
Amendments Do Not Restart the Clock
The Board’s argument that Tillman’s switch from lattice to monopole constituted a “new” application failed because the statute treats an application as fluid during the review process. The court analogized amendments to ordinary iterative negotiations—insufficient to erase lapse of time unless both parties expressly agree.
Loss of Legislative Authority
Once the deadline elapsed, the Board’s authority was not merely procedurally barred; it was extinguished. Under Virginia’s Dillon Rule, the locality cannot act outside the powers the General Assembly has permitted; hence the district court’s declaratory judgment simply recognized an event (automatic approval) that had already occurred.

3. Potential Impact

Although unpublished and technically non-precedential under Fourth Circuit rules, the decision is highly persuasive and carries several practical consequences:

Telecom Deployment Accelerated. Wireless providers can rely on strict statutory deadlines to force local action or obtain automatic approvals, expediting 5G and rural broadband rollout.
Local Government Procedures Revised. Virginia localities will likely overhaul internal workflows to guarantee (a) 10-day completeness determinations and (b) 150-day final votes—or negotiate extensions in writing.
Limits on “Moving Goalposts.” Local governments cannot extend deliberations by requesting additional studies or redesigns unless the applicant agrees in writing.
Declaratory Remedy Clarified. Courts should issue declaratory judgments recognising deemed approvals, rather than remanding for belated local reconsideration.
Cross-Pollination to Other States. Many states have analogous “shot-clock” statutes; this reasoning will be cited to advocate for equally strict enforcement elsewhere.

4. Complex Concepts Simplified

Conditional Use Permit (CUP): A zoning authorization that allows a land use not automatically permitted by right but conditionally permitted upon specified criteria.
“Deemed Complete” vs. “Deemed Approved”: The first status means the application is administratively sufficient and triggers the final-decision clock; the second means the permit is granted by law because the locality failed to act in time.
Summary Judgment de novo Review: On appeal, the court evaluates the record anew, applying the same standard as the district court—no deference to factual findings.
Dillon Rule: A principle (followed in Virginia) under which local governments possess only those powers the state legislature expressly grants or necessarily implies.
Unpublished Opinion: A decision not designated for publication. While not formally precedential within the Fourth Circuit, it may be cited for its persuasive value under Fed. R. App. P. 32.1.

Conclusion

Tillman Infrastructure establishes a crisp—and unforgiving—interpretation of Virginia’s wireless-tower shot clock: if a locality misses either the 10-day completeness window or the 150-day decision window (absent mutual extension), its authority evaporates and the permit is approved by automatic operation of law. Amendments during review do not restart the countdown, and courts should memorialize the statutory consequence through declaratory judgment rather than remand.

By reinforcing statutory precision and legislative supremacy, the Fourth Circuit’s decision will impact not only telecom providers and Virginia localities but also courts nationwide grappling with similar shot-clock regimes. The overarching lesson is encapsulated in the court’s implied admonition: “Miss the clock, lose the power.”