Fairview Twp. v. Fairview Twp. ZHB v. Up State Tower Co., LLC ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fairview Township, :
Appellant :
:
v. :
:
Fairview Township Zoning :
Hearing Board :
:
v. :
: Nos. 1493 & 1494 C.D. 2018
Up State Tower Co., LLC : Argued: February 12, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: June 2, 2020
Fairview Township (Township) appeals from the October 11, 2018
order of the Court of Common Pleas of Erie County (trial court), which, after a de
novo hearing, granted Up State Tower Co., LLC’s (Up State) requests for use, height
and dimensional variances1 with respect to two separate properties.
Up State is in the business of: acquiring real estate, either by purchase
or lease; constructing cellular towers; and providing space for cellular carriers to
1
Although height is a type of dimensional variance, we use the term dimensional variance
here to refer to only a setback.
collocate antennas on said cellular towers. Hearing Transcript (H.T.) 7/23/18 at 17,
Reproduced Record (R.R.) at 74a; see Trial Court’s Findings of Fact (F.F.) 4.2 Up
State will also apply for zoning variances if a desired parcel of property is not zoned
to allow for telecommunications facilities. F.F. 5. Blue Wireless operates a
facilities-based cellular telephone network and is a federal licensee of commercial
mobile radio services. F.F. 6. Blue Wireless also operates stores at which consumers
purchase cell phones for voice and data service. Id. To operate a cell phone network
and provide voice and data services, Blue Wireless requires placement of radio
equipment at certain heights in order for radio equipment to communicate properly.
F.F. 7.
The Township’s zoning ordinance permits the construction and
operation of wireless telecommunications towers in the I-1 Light Industrial, I-2
Industrial Park, and I-3 Heavy Industrial Districts. F.F. 8. These districts comprise
approximately eight percent of the Township. Id.
Up State submitted two separate variance applications to the
Township’s Zoning Heard Board (Board) proposing to construct 50-foot by 50-foot
wireless telecommunications facilities with a height of 160 feet on 2 separate parcels
of property: (1) 7463 West Ridge Road, Fairview, Pennsylvania (Dutch Road
Property); and (2) 7475 West Ridge Road, Fairview, Pennsylvania (Water Street
Property). F.F. 9-10. Both parcels are owned by Fairview Evergreen Nurseries, Inc.
(Evergreen). F.F. 38, 68. The Dutch Road Property is located in the A-1 Rural
District, and the Water Street Property is located in the R-1 Village District; neither
district permits utility, communications, electric or gas operations as of right. F.F.
37, 69. The Township’s zoning ordinance requires a telecommunications tower
2
All of the trial court’s findings of fact appear in its opinion dated October 11, 2018.
2
constructed in any of the “I” industrially zoned districts with a height of 160 feet to
have a minimum setback of 208 feet. F.F. 11. Up State’s applications sought
variances from the Township’s zoning ordinance with respect to use, height and
setback (dimensional) for each property. F.F. 10.
The Board conducted a hearing and granted Up State’s variance
requests, issuing separate decisions with respect to each property. R.R. at 23a-28a;
39a-44a. The Township, among others, appealed to the trial court,3 and Up State
intervened. The Township filed motions to consolidate, and the trial court
consolidated the matters for purposes of trial only. R.R. at 46a-53a. Thereafter, the
trial court conducted a de novo hearing and subsequently issued an opinion and order
dated October 11, 2018, in which it granted the requested variances for both
properties. With respect to the Dutch Road Property, the trial court found that Up
State met all the elements entitling it to a variance under Section 910.2 of the
Pennsylvania Municipalities Planning Code (MPC),4 as well as those required under
section 1103(D) of the 2015 Fairview Township Zoning Ordinance (Zoning
Ordinance).5 Trial Court Opinion (Tr. Ct. Op.) 10/11/18 at 22-26. With respect to
the Water Street Property, the trial court found that Up State failed to satisfy three
3
Various landowners living near both properties filed appeals from the Board’s decisions.
However, the landowners have either discontinued their appeals or are not participating in the
instant appeal.
4
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329, 53 P.S. § 10910.2.
5
Fairview Township, Erie, Pennsylvania, 2015 Fairview Township Zoning Ordinance §
1103(D) (2015). The Township’s Zoning Ordinance is available at
https://www.fairviewtownship.com/sites/fairviewpa/files/u63/zo_ord_2015_0.pdf (last visited
May 29, 2020).
3
of the five elements required for a variance under the MPC.6 Id. at 30. Nevertheless,
the trial court ultimately granted the variances for both the Dutch Road Property and
the Water Street Property, concluding that the Telecommunications Act of 1996 7
(TCA) prohibited a denial of the variances for cellular communications towers under
the circumstances here.
The Township appealed to this Court and, pursuant to the trial court’s
order, filed a statement of errors complained of on appeal in which it challenged,
among other things, the trial court’s findings related to hardship with respect to the
Dutch Road Property and the trial court’s interpretation and application of the TCA.
On January 4, 2019, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a),
addressing each of the Township’s issues and asking this Court to affirm its October
11, 2018 order.
Before this Court,8 the Township raises three issues for our review: (1)
whether Up State satisfied the hardship components under the MPC to establish
6
Under the MPC, an applicant for a variance must establish that: “(1) there are unique
physical circumstances or conditions; (2) causing unnecessary hardship in the form of an
unreasonable inhibition of usefulness of the property; (3) the hardship is not self-inflicted; (4) the
grant of the variance will not adversely impact public health, safety, and welfare; and (5) the
variance sought is the minimum that will afford relief.” Twp. of E. Caln v. Zoning Hearing Bd. of
E. Caln Twp., 915 A.2d 1249, 1252 (Pa. Cmwlth. 2007); see 53 P.S. § 10910.2. The trial court
found that Up State only satisfied the fourth and fifth requirements herein. Tr. Ct. Op. 10/11/18
at 29-30.
7
47 U.S.C. §§ 151-624, 641-646.
8
Where the trial court has taken additional evidence, our scope of review is limited to
determining whether the trial court abused its discretion or committed an error of law. Vito v.
Zoning Hearing Bd. of Borough of Whitehall, 458 A.2d 620, 622 n.3 (Pa. Cmwlth. 1983).
The Board has filed a notice of non-participation in this matter indicating that because the
trial court granted a de novo hearing, this Court reviews the trial court’s opinion and not that of
the Board. Board’s Notice Pursuant to Pa.R.A.P. 908, filed 2/14/19. The Board stated, as a result,
it has no interest in the outcome of the appeal and need not be a party. Id.
4
entitlement to use, height and dimensional variances for the Dutch Road Property;
(2) whether the TCA “trump[s] the MPC with respect to the placement of wireless
communication towers as proposed”; and (3) whether the “one provider” rule—
pursuant to which a provider must establish that the area the new facility will serve
is not already served by another provider, announced by the Third Circuit in APT
Pittsburgh Limited Partnership v. Penn Township Butler County of Pennsylvania,
196 F.3d 469 (3d Cir. 1999), should “remain the law of the Commonwealth” despite
the Federal Communication Commission’s (FCC) 2009 Declaratory Ruling?
Township’s Brief at 6.
VARIANCE FOR DUTCH ROAD PROPERTY – HARDSHIP
Section 910.2 of the MPC provides that a zoning board may grant a
variance where it finds the applicant has established all of the following conditions:
(1) That there are unique physical circumstances or
conditions, including irregularity, narrowness, or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the
particular property and that the unnecessary hardship is
due to such conditions and not the circumstances or
conditions generally created by the provisions of the
zoning ordinance in the neighborhood or district in which
the property is located.
(2) That because of such physical circumstances or
conditions, there is no possibility that the property can be
developed in strict conformity with the provisions of the
zoning ordinance and that the authorization of a variance
is therefore necessary to enable the reasonable use of the
property.
(3) That such unnecessary hardship has not been created
by the [applicant].
5
(4) That the variance, if authorized, will not alter the
essential character of the neighborhood or district in which
the property is located, nor substantially or permanently
impair the appropriate use or development of adjacent
property, nor be detrimental to the public welfare.
(5) That the variance, if authorized, will represent the
minimum variance that will afford relief and will represent
the least modification possible of the regulation in issue.
53 P.S. § 10910.2(a). Similarly, Section 1103(D) of the Zoning Ordinance provides:
The Zoning Hearing Board may adapt or vary the strict
application of any requirements of this Ordinance in the
case of irregular, narrow, shallow or steep lots, or other
physical conditions whereby such strict application would
result in practical difficulty or unnecessary hardship that
would deprive the owner of the reasonable use of the land
or building involved but in no other case.
Zoning Ordinance § 1103(D). The Zoning Ordinance further states:
1. No such variance in the strict application of any
provision of this Ordinance shall be granted by the Zoning
Hearing Board unless it finds the conditions stated in
Section 1103(D) above are such that the strict application
of this Ordinance would deprive the applicant of the
reasonable use of land or buildings.
2. The granting of any variance shall be in harmony with
the general purpose and intent of this Ordinance and the
Comprehensive Plan, and shall not be injurious to the
neighborhood or otherwise detrimental to the public
welfare and shall be the minimum necessary to afford
relief.
3. The [B]oard must determine that any unnecessary
hardship has not been created by the appellant.
6
Zoning Ordinance § 1103(D)(1)-(3).
The Township argues that Up State failed to establish the necessary
hardship to grant the variances for the Dutch Road Property because the testimony
demonstrated only a business hardship to Up State, which is insufficient.
Township’s Brief at 20. The Township states that it is unknown whether the Dutch
Road Property could be used for any other permitted uses and whether it would be
cost prohibitive to use the Dutch Road Property for another permitted use because
Up State failed to offer any evidence concerning this. Id. at 15. The Township
contends that the trial court erred in concluding that the inability to engage in
horticulture was enough to establish hardship. Id. at 26. Up State does not respond
to the Township’s argument or even address the issue of hardship in its brief.
“The burden on an applicant seeking a zoning variance is heavy, and
variances should be granted sparingly and only under exceptional circumstances.”
Pham v. Upper Merion Twp. Zoning Hearing Bd., 113 A.3d 879, 891 (Pa. Cmwlth.
2015). With respect to a use variance, our Supreme Court has stated:
unnecessary hardship is established by evidence that: (1)
the physical features of the property are such that it cannot
be used for a permitted purpose; or (2) the property can be
conformed for a permitted use only at a prohibitive
expense; or (3) the property has no value for any purpose
permitted by the zoning ordinance. . . .
This Court has repeatedly made clear that in establishing
hardship, an applicant for a variance is not required to
show that the property at issue is valueless without the
variance or that the property cannot be used for any
permitted purpose. . . .
7
Marshall v. City of Philadelphia, 97 A.3d 323, 330 (Pa. 2014) (quotation marks and
citations omitted) (emphasis omitted). “Although a property owner is not required
to show that his or her property is valueless unless a variance is granted, mere
economic hardship will not of itself justify a grant of a variance.” Id.; see also Pham,
113 A.3d at 892 (citing Marshall). “In other words, mere hardship is not sufficient;
there must be unnecessary hardship.” S. Broad St. Neighborhood Ass’n v. Zoning
Bd. of Adjustment of Phila., 208 A.3d 539, 548 (Pa. Cmwlth. 2019) (internal
quotation marks and bracket omitted). Additionally, the fact that “the property may
be used more profitably with the proposed use is not grounds for granting a
variance.” Society Created To Reduce Urban Blight (SCRUB) v. Zoning Bd. of
Adjustment of Phila., 814 A.2d 847, 850 (Pa. Cmwlth. 2003) (SCRUB); see also
Marshall, 97 A.3d at 333 (stating that “evidence that the zoned use is less financially
rewarding than the proposed use is insufficient to justify a variance”).
Here, the trial court found that the Dutch Road Property is irregular in
that it is pie-shaped. F.F. 46. The trial court also found that the property has unique
physical circumstances because it is uneven and has a “swale” or a dip/valley on the
southern portion. F.F. 48. The trial court found that the southern portion of the
property is not being utilized because the topography does not allow for cultivation
of ornamental plants or farm crops. F.F. 49. The trial court found that the proposed
communications site would occupy a 50-foot by 50-foot area of the northwest
portion of the property and would be located such that it would have an
approximately 2,380-foot front yard setback, a 13½-foot rear yard setback, and side
yard setbacks of 264.9 feet and 14.6 feet. F.F. 63-64. The trial court concluded that
the existence of the uneven topography and “swale” on the southern portion of the
property and the irregular “pie-wedge” shape of the property constituted unique
8
physical circumstances or conditions of the Dutch Road Property and that such
unique physical conditions rendered the property unusable for horticulture, a
permitted use in the A-1 Rural District in which the property lies. Tr. Ct. Op.
10/11/18 at 22-23; Tr. Ct. Op. 1/4/19 at 3. The trial court found that Evergreen owns
property immediately north of the Dutch Road Property on which Evergreen
operates a tree farm and grows ornamental trees and other plants. F.F. 47. The trial
court also found that the previous owner of the Dutch Road Property dumped non-
organic materials onto the property, including expended diesel containers and used
tires. F.F. 62. The trial court further found that Evergreen purchased the Dutch
Road Property because the price was reasonable and to protect the southern border
of its parcel to the north, which the trial court concluded was the only useful purpose
of the Dutch Road Property. F.F. 60; Tr. Ct. Op. 10/11/18 at 23.
Although there are unique physical conditions of the property, it is
apparent from the trial court’s findings that it only considered a horticultural use for
the property. However, Section 709 of the Zoning Ordinance also permits the
following uses as of right in the A-1 Rural District: single-family detached
dwellings; group residence facilities; parks, playgrounds and other publicly owned
and/or operated recreational uses, including those of a subdivision association;
municipal or civic buildings, public libraries, museums, fire and police stations; and
cemeteries and mausoleums. See Zoning Ordinance § 709(A)(1-3), (5-6).
Additionally, educational, religious and philanthropic uses may be permitted as a
special exception. See Zoning Ordinance § 709(A)(4).
Further, the trial court found that the proposed telecommunications site
would occupy a 50-foot by 50-foot area of the northwest portion of the property and
would be located on the property such that it would have an approximately 2,380-
9
foot front yard setback, a 13 ½-foot rear yard setback, and side yard setbacks of
264.9 feet and 14.6 feet. F.F. 63-64. However, the “swale” is on the southern portion
of the Dutch Road Property, and interestingly, the trial court found that the southern
portion of the Dutch Road Property is not being utilized because the topography
does not allow for cultivation of ornamental plants or farm crops. The trial court did
not consider whether the Dutch Road Property, including other portions of the
property, can be used for other permitted uses, and significantly, Up State does not
direct us to any evidence in the record regarding whether the property can be used
for other permitted uses.
We acknowledge that this was not the only way for Up State to establish
hardship for a use variance—an applicant can also establish that the property can be
conformed for a permitted use only at a prohibitive expense or that the property has
no value for any purpose permitted by the Zoning Ordinance. Marshall, 97 A.3d at
330. The trial court, however, did not find that Up State established either of these,
and again, Up State has failed to point to any evidence in the record establishing
such. We are mindful that it is Up State’s burden to establish the necessary elements
for a variance. See Pham, 113 A.3d at 891. Therefore, we conclude that Up State
failed to establish the requisite unnecessary hardship for a use variance for the Dutch
Road Property, and the trial court erred as a matter of law in concluding otherwise.
Because Up State did not establish the requisite hardship for a use
variance, we need not address whether it established the requisite hardship for the
height and dimensional variances.
Our conclusion that Up State failed to establish it was entitled to a use
variance for the Dutch Road Property does not end our inquiry as the trial court
10
found that Up State was entitled to variances for both the Dutch Road Property and
the Water Street Property under the TCA.
THE TELECOMMUNICATIONS ACT
Trial Court Decision
As stated, the trial court granted the variances for both the Dutch Road
Property and the Water Street Property and concluded that the TCA prohibited
denying the variances under the circumstances here. Specifically, the trial court
noted that the TCA places substantive limitations on state and local governments,
which “‘shall not prohibit or have the effect of prohibiting the provision of personal
wireless services.’” Tr. Ct. Op. 10/11/18 at 32 (quoting Section 332(c)(7)(B)(i)(II)
of the TCA, 47 U.S.C. § 332(c)(7)(B)(i)(II)). In construing what it means to
“prohibit or have the effect of prohibiting[,]” the trial court stated:
The Third Circuit has implemented a two-pronged
test to determine whether a state or local government, or
instrumentality thereof, has effectively prohibited the
provision of personal wireless services thereby violating
Section 332(c)(7)(B)(i)(II). Effective prohibition of
service is present if the provider establishes: (1) the
provider’s “facility will fill an existing significant gap in
the ability of remote users to access the national telephone
network”; and (2) the “manner in which it proposes to fill
the significant gap in service is the least intrusive on the
values that the denial sought to serve.” [APT, 196 F.3d at
480].
Id. With respect to the first prong, that is, whether the facility will fill an existing
gap, the trial court stated:
The Third Circuit followed the “one provider” rule, which
required a showing that a “significant gap” in a wireless
provider’s service as a gap in service that was not being
serviced by any other providers. See Omnipoint
11
Commc’ns Enters. L.P. [v. Zoning Hearing Bd. of
Easttown Twp., 331 F.3d [386,] 398 (3d Cir. 2003).
However, in 2009, the FCC rejected this “one provider”
interpretation of the “effective prohibition” clause of
Section 332(c)(7)(B)(i) and adopted a standard that
requires a provider to show a gap in its own service. See
[In the Matter of Petition for Declaratory] Ruling to
Clarify Provisions of Section 332(c)(7)(B) [to Ensure
Timely Siting Review and to Preempt Under Section 253
State and Local Ordinances that Classify All Wireless
Siting Proposals as Requiring a Variance], 24 F.C.C.R.
13994 ¶ 56-61 (Nov. 18, 2009) [(2009 Declaratory
Ruling)] (“[A] State or local government that denies an
application for personal wireless service facilities siting
solely because ‘one or more carriers serve a given
geographic market’ has engaged in unlawful regulation
that ‘prohibits or ha[s] the effect of prohibiting the
provision of personal wireless services,’ within the
meaning of Section 332(c)(7)(B)(i)(II).”).
Tr. Ct. Op. 10/11/18 at 32-33 (emphasis added). After further analysis, the trial court
concluded that the FCC’s 2009 Declaratory Ruling was entitled to deference and
adopted the rule that “a significant gap in service must exist in an area only for that
particular service provider[,]” thereby rejecting the “one provider” rule. Id. at 33.
The trial court then determined: (1) “the two proposed telecommunications towers
together will substantially remedy Blue Wireless’ gap in service”; and (2) the
proposal is the least intrusive means of remedying Blue Wireless’ gap in coverage
in the Township. Tr. Ct. Op. 10/11/18 at 35-38. The trial court concluded that a
denial of the variances would “effectively prohibit Blue Wireless from providing
seamless wireless service in Fairview Township in violation of Section
332(c)(7)(B)(i)(II) of the TCA.” Tr. Ct. Op. 10/11/18 at 38. Accordingly, the trial
court granted the variances for both properties. Tr. Ct. Op. and Order 10/11/18 at
39-40.
12
In its subsequent Pa.R.A.P. 1925(a) opinion filed January 4, 2019, the
trial court reaffirmed its analysis and application of the TCA. Tr. Ct. Op. 1/4/19 at
33-36. The trial court also noted that on September 26, 2018, the FCC issued an
additional Declaratory Ruling in which it “reaffirm[ed]” its interpretation of the
effective prohibition standard, “namely, that a state or local legal requirement
constitutes an effective prohibition if it ‘materially inhibits or limits the ability of
any competitor or potential competitor to compete in a fair and balanced legal and
regulatory environment.’” Id. at 36 (quoting In the Matter of Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Invest., 33 F.C.C.R.
9088, 9102 ¶ 35 (2018), 2018 WL 4678555 *12) (2018 Declaratory Ruling). The
trial court further noted that the 2018 Declaratory Ruling stated that “the test is met
not only when filling a coverage gap but also when densifying a wireless network,
introducing new services or otherwise improving service capabilities.” Tr. Ct. Op.
1/4/19 at 36 (quoting 2018 Declaratory Ruling).
Parties’ Arguments
The Township argues that the TCA does not “trump” the MPC with
respect to the placement of wireless telecommunications towers and that the “one
provider rule” enunciated in APT should “remain the law of the Commonwealth”
despite the FCC’s 2009 Declaratory Ruling. Township’s Brief at 6, 20-21. The
Township contends that although the TCA places restrictions on local regulatory
bodies, it does not completely preempt their ability to control local zoning decisions
in relation to telecommunication services. Id. at 29. The Township further points
out that the MPC and the Township’s Zoning Ordinance are presumed valid and
there has been no attack upon the MPC or the Zoning Ordinance herein. Id. at 31.
The Township also argues that Pennsylvania should follow the “one provider” rule
13
because, otherwise, if a provider need only show a gap in its coverage, then any
wireless provider without a presence in a particular location could apply for a
variance and construct a cellular communications tower by merely establishing it
does not have a presence in the area, without having to establish the requirements
for a variance and without any regard for zoning, the MPC or the neighborhood.
Township’s Brief at 35-36.
Further, with respect to giving deference to the FCC’s 2009 Declaratory
Ruling, the Township contends that although agency decisions are usually granted
“Chevron deference,”9 such deference applies only if the agency’s construction
applies to ambiguous terms of the statute. Township’s Brief at 36-37. The Township
contends that, although not expressly stated, APT can fairly be read to conclude that
the language at issue is unambiguous, and therefore, this Court is not required to
afford deference to the FCC’s Declaratory Rulings with respect to the “one provider”
rule. Id. at 37. Lastly, the Township contends that, even if the FCC’s interpretation
is correct, there is no evidence in the record to establish that Up State engaged in the
appropriate investigation to determine whether the proposed sites were the least
intrusive. Id.
In response, Up State contends that the Township relies on case law,
namely the “one provider rule,” which is no longer valid law. Up State’s Brief at
19. Up State does not contend that APT is no longer good law in its entirety but,
rather, that portions of the decision have been repudiated by the FCC. Id. at 21. Like
the trial court, Up State relies on the FCC’s 2009 Declaratory Ruling and points to
9
Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). “Under
federal and Pennsylvania jurisprudence, properly[]enacted legislative rules enjoy a presumption
of reasonableness and are accorded a particularly high measure of deference—often denominated
Chevron deference—by reviewing courts.” Nw. Youth Servs., Inc. v. Dep’t of Pub. Welfare, 66
A.3d 301, 311 (Pa. 2013) (citing Chevron, U.S.A.).
14
federal district court cases within the Third Circuit decided subsequent to that
Ruling, which recognized that the FCC’s 2009 Declaratory Ruling is entitled to
deference and stated that the “one provider” rule is no longer applicable. Id. at 21-
22. Alternatively, Up State argues that it met its burden of establishing a significant
gap in its coverage in the Township and that it made a good faith effort to identify
lesser intrusive alternatives to the proposed facility. Id. at 22-24.
Analysis
Section 332(c) of the TCA provides, in relevant part:
(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this
chapter 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.
15
47 U.S.C. § 332(c)(7)(A), (B)(i)(I)-(II). Thus, as the trial court noted, while Section
332(c)(7) of the TCA preserves state and local governments’ authority to regulate
zoning, it “places limitations on the general authority of state or local governments
or instrumentalities thereof to make ‘decisions regarding the placement,
construction, and modification of personal wireless service facilities.’” Liberty
Towers, LLC v. Zoning Hearing Bd. of Lower Makefield Twp., 748 F. Supp. 2d 437,
441 (E.D. Pa. 2010) (quoting 47 U.S.C. § 332(c)(7)(A)); see also Tr. Ct. Op.
10/11/18 at 31.
At issue here is the meaning and scope of the limitation set forth in
subsection (B)(i)(II) of Section 332(c)(7), that is, whether the local zoning pursuant
to which the variances are being denied “prohibit[s] or [has] the effect of prohibiting
the provision of personal wireless services.”10 47 U.S.C. § 332(c)(7)(B)(i)(II). The
TCA does not define what it means to “prohibit” or “have the effect of prohibiting[.]”
In applying this provision of the TCA, the trial court framed the issue
as whether the provider must prove: (1) that there is a significant gap in service to
remote users that was not being serviced by another provider, i.e., the “one provider”
rule, as set forth in APT; or (2) that there is a significant gap in service in any area
for that particular service provider. The trial court noted that, in 1999, the Third
Circuit adopted the “one provider” rule, but that other federal circuits have reached
opposite conclusions and require a provider to show only a gap in its own service.
Tr. Ct. Op. 1/4/19 at 35. The trial court noted that “[i]n response to this ‘circuit
split,’ the FCC in 2009 issued its Declaratory Ruling[,]” wherein it rejected the “one
10
The Township states the “unreasonable discrimination” prong of the TCA, set forth in
subsection (B)(i)(I), is not at issue because Up State did not argue that before the trial court.
Township’s Brief at 33 n.3. Up State does not dispute this, nor does it argue “unreasonable
discrimination” in its brief filed with this Court. Hence, these issues will not be addressed herein.
16
provider” rule in favor of a standard that requires a provider to show a gap in its own
service rather than a showing that the area is not already served by another provider.
Tr. Ct. Op. 1/4/19 at 35 (citing 2009 Declaratory Ruling at 13994 ¶¶ 56-61 (emphasis
omitted)). The trial court stated that although the Third Circuit has not yet addressed
the FCC’s 2009 Declaratory Ruling, the Eastern District of Pennsylvania has
concluded this Ruling is entitled to deference. Tr. Ct. Op. 10/11/18 at 32-33 (citing
Liberty Towers, 748 F. Supp. 2d at 444 (concluding that “under well-established
principles of administrative law, the FCC’s Declaratory Ruling is entitled to
deference from the . . . courts”); see also Levy v. Sterling Holding Co., LLC, 544
F.3d 493, 502 (3d Cir. 2008) (“[I]f a court of appeals interprets an ambiguous statute
one way, and the agency charged with administering that statute subsequently
interprets it another way, even that same court of appeals may not then ignore the
agency’s more recent interpretation.”)). Accordingly, the trial court determined that
the FCC’s 2009 Declaratory Ruling was entitled to deference and stated that it was
adopting the rule, as set forth and adopted in Liberty Towers, “that a significant gap
in service must exist in an area only for that particular service provider.” Tr. Ct. Op.
10/11/18 at 33. Additionally, in its subsequent 1925(a) opinion, the trial court stated
that, pursuant to the FCC’s 2018 Declaratory Ruling, the relevant inquiry is no
longer limited to just a gap in service for a particular provider, but also includes a
particular service provider’s efforts to densify, expand or otherwise improve its
existing service capabilities. Tr. Ct. Op. 1/4/19 at 35-37.
The Township, however, argues that if a provider need only show a gap
in its coverage in order to obtain a variance, then any wireless provider without a
presence in a particular location could apply for a variance and construct a cellular
communications tower anywhere it desires by merely establishing it does not have a
17
presence in the area, without having to establish the requirements for a variance and
without any regard for zoning, the MPC or the neighborhood. Township’s Brief at
35-36. The Township contends that the TCA must be read in conjunction with the
MPC and its hardship requirements and that the TCA does not “trump” the MPC
with respect to the placement of wireless telecommunications towers. Township’s
Brief at 30, 35-36. The Township asserts the TCA expressly preserves a local
municipality’s ability to zone where towers are placed. Township’s Brief at 30.
Notably, simply looking at the question of whether a service provider
has a gap in its coverage (or is attempting to densify, expand or otherwise improve
its existing service) is not the entirety of the FCC’s ruling on what constitutes a
prohibition or effective prohibition. Significantly, in rejecting the “one provider”
rule, the FCC’s 2009 Declaratory Ruling states, “it is a violation of Section
332(c)(7)(B)(i)(II) [of the TCA] for a State or local government to deny a personal
wireless service facility siting application solely because that service is available
from another provider.” 2009 Declaratory Ruling at 14000 ¶ 19 (emphasis added);
see also id. at 14016 ¶ 56 (stating, “a State or local government that denies an
application for personal wireless service facilities siting solely because ‘one or more
carriers serve a given geographic market’ has engaged in unlawful regulation that
‘prohibits or ha[s] the effect of prohibiting the provision of personal wireless
services,’ within the meaning of Section 332(c)(7)(B)(i)(II)”) (emphasis added); id.
at 14021 ¶ 71. Additionally, the FCC stated, “where a bona fide local zoning
concern, rather than the mere presence of other carriers, drives a zoning decision, it
should be unaffected by our ruling today.” Id. at 14018 ¶ 62. Accordingly, given
this language in the FCC’s 2009 Declaratory Ruling, we agree with the Township
18
that the TCA does not “trump” the MPC with respect to the placement of wireless
telecommunications towers.
Despite quoting the “solely because” language from the FCC’s ruling
in its opinion,11 the trial court, in concluding that an applicant need establish only a
gap or other deficiency in its own coverage in order to establish entitlement to a
variance, took the FCC’s statement out of context and did not consider the entirety
of the FCC’s statement as to what constitutes a prohibition or effective prohibition.
This was error. The FCC’s 2009 Declaratory Ruling directs us to look at what
“drives” the zoning decision or, in other words, on what the decision is based.
Here, the denial of the variances is not “solely because” the service is
available from another provider but, rather, is based on a bona fide local zoning
concern. Indeed, with respect to the Water Street Property, the trial court found that
Up State failed to establish three of the five elements necessary for a variance.
Specifically, the trial court found that Evergreen’s purpose of entering into the lease
with Up State to construct the telecommunications tower was to earn additional
revenue and that, therefore, the unnecessary hardship criterion was not satisfied. Tr.
Ct. Op. at 27. The trial court also found that there were no unique physical
circumstances or conditions of the property causing unreasonable hardship. Id. In
fact, the trial court noted that Evergreen is presently making reasonable use of the
Water Street Property and has been doing so in excess of 20 years. Id. Lastly, the
trial court found that any unnecessary hardship was self-inflicted because Evergreen
agreed to subdivide the Water Street Property and, as a result, needed dimensional
variances. Id. at 28. These reasons have nothing to do with whether service is
available from another provider or whether Blue Wireless needed to densify, expand
11
See Tr. Ct. Op. 10/11/18 at 33 (quoting 2009 Declaratory Ruling at 14016 ¶ 56).
19
or otherwise improve its network. Consequently, the denial of the variances
pursuant to the MPC was not based solely on the presence of other providers or the
existence of some coverage by Blue Wireless. The decision with respect to the
Water Street Property was based on a bona fide local zoning concern, i.e., a lack of
unique physical circumstances or conditions that cause an unnecessary hardship and
any hardship was self-inflicted.
Additionally, we have determined, contrary to the trial court’s decision,
Up State failed to establish the requisite hardship to entitle it to a variance for the
Dutch Road Property. See supra at pp. 5-10. This, too, is a bona fide local zoning
concern and has nothing to do with whether service is available from another
provider or whether Up State needs to densify, expand or otherwise improve its
network.
In short, the presence of other carriers, or the condition of Blue
Wireless’ coverage, did not play a role in the variance determinations for either the
Water Street Property or the Dutch Road Property. Thus, because the prohibition of
services here was not based “solely on the presence of another carrier” and because
“a bona fide local zoning concern, rather than the mere presence of other carriers,
drives [this] zoning decision,” the decision to deny the variances does not “prohibit”
or “effectively prohibit” the provision of wireless services in contravention of the
TCA and, therefore, “should be unaffected by [the FCC’s] ruling.” See 2009
Declaratory Ruling at 14017 ¶ 60, 14018 ¶ 62. Indeed, we have stated that “[n]ot
every municipality’s denial of an application to build a wireless facility violates the
TCA.” Vineyard Oil & Gas Co. v. N. E. Twp. Zoning Hearing Bd., 215 A.3d 77, 87
(Pa. Cmwlth. 2019) (citing APT); see also APT, 196 F.3d at 478 (stating that to
“[i]nterpret[] the TCA’s ‘effect of prohibiting’ clause to encompass every individual
20
zoning denial simply because it has the effect of precluding a specific provider from
providing wireless services, however, would give the TCA preemptive effect well
beyond what Congress intended”).
The effect of the trial court’s application of the TCA is that simply
because a gap in Blue Wireless’ coverage exists, and the proposed towers are the
least intrusive way to remedy the gap, Up State is entitled to the variances. However,
this application of the TCA completely ignores the FCC’s mandate that where a bona
fide local zoning concern drives the decision, it is unaffected by the FCC’s ruling.
There is a difference between: (1) mandating the granting of an application for a cell
tower simply because a provider has a significant gap in coverage and has proposed
the least intrusive means to remedy it; and (2) prohibiting the denial of an application
solely on the basis that another provider is covering an area. The two are not the
same. The FCC’s ruling does only the latter; however, the trial court’s ruling follows
the former, apparently believing this to be the effect of the FCC’s ruling.
Application of the former would mean that a provider could place a tower wherever
it pleases so long as it establishes a significant gap in its coverage (or a desire to
densify, expand, or otherwise improve its network) and has proposed the least
intrusive means to remedy it. Application of the latter means that a state or local
regulatory authority cannot deny an application based solely on the fact that another
provider provides coverage or that there is coverage in the area. Moreover, under
the trial court’s interpretation of the TCA, authorizing a cell tower simply because a
provider has a gap in coverage, or needs to expand, densify or otherwise improve its
coverage, effectively means that the insufficiency in coverage is a hardship entitling
the provider to a variance. This cannot be the case, however, as such a “hardship”
is an economic hardship. The hardship must be to the property, not the person. See
21
Yeager v. Zoning Hearing Bd. of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001)
(stating that a variance “is appropriate only where the property, not the person, is
subject to hardship”) (emphasis in original) (internal quotation marks and citation
omitted).
Our interpretation is supported by the FCC’s own statements explaining
its 2009 Declaratory Ruling, in which the FCC repeatedly stated that its ruling does
not affect zoning decisions based on grounds other than the presence of another
carrier. For example, the FCC explained, “[o]ur actions herein will not preempt
State or local governments from reviewing applications for personal wireless service
facilities[’] placement, construction, or modification” and that, “pursuant to the
authority Congress reserved to [State or local governments] in Section
332(c)(7)(A)[,] [u]nder Section 332(c)(7)(B)(iii), they may deny such applications
if the denial is “supported by substantial evidence contained in a written record.”
2009 Declaratory Ruling at 14002, ¶ 25. The FCC’s 2009 Declaratory Ruling also
stated:
As explained below, however, our interpretation of the
statute does not mandate such approval and therefore does
not strip State and local authorities of their Section
332(c)(7) zoning rights. Rather, we construe the [TCA]
statute to bar State and local authorities from prohibiting
the provision of services of individual carriers solely on
the basis of the presence of another carrier in the
jurisdiction; State and local authority to base zoning
regulation on other grounds is left intact by this ruling.
2009 Declaratory Ruling at 14017 ¶¶ 59-60 (footnotes omitted) (emphasis added).
The FCC again noted that its ruling preserves state and local authority to reasonably
regulate, stating:
22
Our determination also serves the [TCA’s] goal of
preserving the State and local authorities’ ability to
reasonably regulate the location of facilities in a manner
that operates in harmony with federal policies that
promote competition among wireless providers. As we
indicated above, nothing we do here interferes with these
authorities’ consideration of and action on the issues that
traditionally inform local zoning regulation. Thus, where
a bona fide local zoning concern, rather than the mere
presence of other carriers, drives a zoning decision, it
should be unaffected by our ruling today.
Id. at 14018 ¶ 62 (footnotes omitted) (emphasis added) (italics in original deleted).12
Additionally, the FCC’s subsequent 2018 Declaratory Ruling reaffirmed the role of
state and local governments in land use and zoning matters. The FCC stated that its
ruling “ensures that state and local elected officials will continue to play a key role
in reviewing and promoting the deployment of wireless infrastructure in their
communities.” 2018 Declaratory Ruling at 9090 ¶ 6. The FCC added:
our interpretation remains faithful to the purpose of
Section 332(c)(7) to balance Congress’s competing
desires to preserve the traditional role of state and local
governments in regulating land use and zoning, while
encouraging the rapid development of new
telecommunications technologies. Under our
12
We acknowledge that with respect to a denial of an application, the FCC stated:
[w]e note that the denial of an application may sometimes establish
a violation of Section 332(c)(7)(B)(ii) if it demonstrates a policy that
has the effect of prohibiting the provision of personal wireless
services as interpreted herein. Whether the denial of a single
application indicates the presence of such a policy will be dependent
on the facts of the particular case.
2009 Declaratory Ruling at 14019 ¶ 65. Here, however, there was no evidence presented regarding
the presence of any such policy.
23
interpretation, states and localities retain their authority
over personal wireless facilities deployment.
2018 Declaratory Ruling at 9157 ¶ 135.
The TCA’s purpose is to promote competition, not to take over or
completely preempt the state and local authority to regulate zoning. The Third
Circuit has stated, “Congress enacted the TCA to provide ‘a pro-competitive, de-
regulatory national policy framework designed to rapidly accelerate private sector
deployment of advanced telecommunications and information technologies and
services to all Americans by opening all telecommunications markets to
competition.’” APT, 196 F.3d at 473 (quoting H.R. Conf. Rep. No. 104–458 (1996),
reprinted in 1996 U.S.C.C.A.N. 10, 1124) (emphasis added); see 47 U.S.C. §
332(c)(7)(B)(i)(I), (II) (stating that the regulation of personal wireless service
facilities “shall not unreasonably discriminate among providers” and “shall not
prohibit or have the effect of prohibiting wireless services”) (emphasis added). The
TCA “was intended to promote competition by limiting the ability of local
authorities to regulate and control the expansion of telecommunications
technologies.” Omnipoint Commc’ns Enters., L.P. v. Newtown Twp., 219 F.3d 240,
242-43 (3d Cir. 2000) (emphasis added); see 2018 Declaratory Ruling at 9102 ¶ 35
(stating that a “state or local legal requirement constitutes an effective prohibition if
it ‘materially limits or inhibits the ability of any competitor or potential competitor
to compete in a fair and balanced legal and regulatory environment’” (emphasis
added)). The TCA “strikes a balance between two competing aims— to facilitate
nationally the growth of wireless telephone service and to maintain substantial local
control over siting of towers.” Omnipoint Commc’ns, Inc. v. City of White Plains,
430 F.3d 529, 531 (2d Cir. 2005) (quotation marks and citation omitted); see 2009
Declaratory Ruling at 13995 ¶ 3 (stating, “[w]hile Section 332(c)(7) of the [TCA]
24
preserves the authority of State and local governments with respect to such
approvals, Section 332(c)(7) also limits such State and local authority, thereby
protecting core local and State government zoning functions while fostering
infrastructure build out”); see also Liberty Towers, 748 F. Supp. 2d at 441 (quoting
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (stating, “[t]o that
end, Congress set out to reduce ‘the impediments imposed by local governments
upon the installation of facilities for wireless communication, such as antenna
towers’”).
For the foregoing reasons, the trial court erred in concluding that the
variances had to be granted merely because a gap in Blue Wireless’ coverage existed.
The subject denials were not based solely upon another provider’s ability to provide
coverage in the gap or based upon Blue Wireless’ existing coverage, but, rather,
were based upon a lack of hardship.13
Accordingly, the trial court’s order is reversed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
13
Because of our disposition and the fact the variances are not being denied solely because
there is not a significant gap in Blue Wireless’ coverage or because a gap existed that was being
served by another provider (i.e., the “one provider” rule), we need not reach the question of
whether Pennsylvania should apply the “one provider” rule. Additionally, given our disposition,
we need not address whether Up State established that its proposal was the least intrusive means
to remedy its coverage gap.
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fairview Township, :
Appellant :
:
v. :
:
Fairview Township Zoning :
Hearing Board :
:
v. :
: Nos. 1493 & 1494 C.D. 2018
UP State Tower Co., LLC :
ORDER
AND NOW, this 2nd day of June, 2020, the October 11, 2018 order of
the Court of Common Pleas of Erie County is REVERSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge