Upper Salford Twp. v. ZHB of Upper Salford Twp. ~ Appeal of: Cellco Partnership d/b/a Verizon Wireless ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Upper Salford Township :
:
v. : Nos. 883 and 1162 C.D. 2019
:
Zoning Hearing Board of Upper :
Salford Township and Cellco :
Partnership d/b/a Verizon Wireless :
:
Appeal of: Cellco Partnership d/b/a :
Verizon Wireless : ARGUED: June 12, 2020
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 9, 2020
Cellco Partnership d/b/a Verizon Wireless (Cellco) appeals from the August
12, 2019 order of the Court of Common Pleas of Montgomery County (trial court),1
reversing the decision of the Upper Salford Township (Township) Zoning Hearing
Board (ZHB), which determined that the Township Zoning Ordinance (Township
Ordinance) constituted a de facto exclusion2 of cellular communications facilities
1
Cellco appealed the trial court’s June 21, 2019 Supplemental Opinion and Decision on
July 8, 2019. This Court subsequently directed Cellco to file a praecipe to have the Supplemental
Opinion and Decision reduced to an order and entered on the trial court docket. Cellco complied
and filed a notice of appeal to the trial court’s resultant August 13, 2019 order on August 14, 2019.
This second appeal, docketed at 1162 C.D. 2019, was consolidated with 883 C.D. 2019 by order
of this Court dated December 4, 2019.
2
A de facto exclusion exists where an ordinance permits a use on its face but, when applied,
acts to prohibit the use throughout the municipality. Macioce v. Zoning Hearing Bd. of the
Borough of Baldwin, 850 A.2d 882, 888 (Pa. Cmwlth. 2004) (internal citations omitted).
within the Township and granted Cellco site-specific relief. After review, we vacate
and remand this matter for further proceedings.
I. Factual and Procedural Background
In November 2017, citing Cellco’s “need for wireless coverage and additional
capacity” within the Township, Cellco sought to install a 100-foot monopole cell
tower with 12 antennae on real property located in the Township’s industrial (IN)
district. Reproduced Record (R.R.) at 8a. Article III, Section 27-304(A)(3) of the
Township Ordinance permits the placement of a cellular communications antenna in
any zoning district provided the antenna is attached to the exterior of an existing cell
tower or other tall building and the height of the antenna does not exceed the height
of the existing structure by more than 15 feet. Upper Salford Township, Pa.,
Ordinance, ch. 27, art. III, § 27-304(A)(3) (July 14, 2005). Otherwise, a cellular
communications antenna is only permitted by special exception in either the light
limited industrial (LLI)3 or limited industrial (LI)4 districts. R.R. at 11a. Cellco filed
an application with the ZHB seeking a use variance on the basis that the LI and LLI
districts could not accommodate Cellco’s proposed cell tower and antennae. Id. at
9a. In the alternative, Cellco sought site-specific relief on the basis that the LI and
LLI districts comprised only a small portion of the Township and the Township
Ordinance effectively excluded the installation of cell towers within the Township.
Id. at 11a. Cellco further alleged that the Township Ordinance violated the federal
3
Chapter 27, Article XIV, Section 27-1401(C)(1) of the Township Ordinance permits
“Cellular Communications Antennae” by special exception in the LLI district.
4
Chapter 27, Article XV, Section 27-1501(B)(1) of the Township Ordinance permits
“Cellular Communications Antennae” by special exception in the LI district.
2
Telecommunications Act of 1996 (TCA).5 Id. The ZHB held eight separate hearings
on Cellco’s use variance application.6
A. Cellco’s Evidence
Brian Martinelli, a site acquisitions manager for Cellco, testified to the method
he used in determining the best location for Cellco’s proposed cell tower and
antennae. At the outset, Cellco provided Mr. Martinelli a “search ring,” or area in
which Cellco lacked reliable coverage. R.R. at 117a. Mr. Martinelli then drove
through that area looking for suitable structures or vacant land upon which the cell
tower and antennae could be located. Id. While Mr. Martinelli’s preference was to
“work with the [Township O]rdinance,” he determined that the LI and LLI districts
were not viable locations due to their low elevation and placement outside Cellco’s
search ring. Id. at 117a-18a, 148a. Mr. Martinelli considered installing the antennae
on existing structures; however, none within Cellco’s search ring were deemed tall
enough. Id. at 131a. All properties or structures Mr. Martinelli considered
appropriate for Cellco’s telecom facility were located outside the LI and LLI
districts, where installation of the cell tower and antennae required a use variance.
Id. at 119a. Ultimately, Mr. Martinelli selected real property currently occupied by
a fire department (the Property) as the ideal site upon which to install the cell tower
and antennae. Id. at 118a. The fire department would receive enhanced
communications service at no extra charge in exchange for permitting the
installation of Cellco’s cell tower and antennae on the Property. Id.
5
47 U.S.C. §§ 151-624. Section 253(a) of the TCA relevantly provides that local
governments may not enact regulations for the purpose of prohibiting the entry of new providers
of telecommunications services. 47 U.S.C. § 253(a).
6
ZHB hearings were held on November 30, 2017, January 8, 2018, February 12, 2018,
March 12, 2018, April 30, 2018, June 11, 2018, July 9, 2018, and September 5, 2018.
3
Michael Fischer, a radio frequency engineer employed as a consultant for
Cellco, testified that a ridge bisects the Township. Id. at 185a. The LI and LLI
districts to the northeast of this ridge lie approximately 150 feet lower in ground
elevation than the Property. Id. at 252a. Locating the proposed cell tower and
antennae in the permitted districts would not resolve Cellco’s coverage issues, as
coverage would essentially stop at the top of the ridge. Id. at 185a, 252a. As a result,
the southern portion of the Township would remain devoid of reliable coverage. Id.at 252a. Mr. Fischer noted the existence of other cellular communications facilities
in neighboring townships that provided some coverage to the Township. Id. at 166a.
However, these facilities primarily provided coverage to the townships in which they
were located. Id.Brian Seidel, a landscape architect appearing on Cellco’s behalf, testified that
the proposed cell tower would be located “very close” to the ridgeline bisecting the
Township. Id. at 356a. Installation of the cell tower and antennae at this location
would afford coverage to the communities on either side of the ridgeline. Id. at 357a.
B. The Township’s Evidence
John Giannini, Chairman of the Township Planning Commission
(Commission), testified on behalf of the Township. As provided for in Article XI of
the Pennsylvania Municipalities Planning Code (MPC),7 the Township, along with
five other municipalities (Participating Municipalities), is a participant in the Indian
Valley Regional Comprehensive Plan (Comprehensive Plan). R.R. at 84a-86a. In
his capacity as a member of the Commission, Mr. Giannini was involved with the
Township’s participation in the Comprehensive Plan. Id. at 461a. The
7
Act of July 31, P.L. 805, as amended, 53 P.S. §§ 11101 – 11707. Article XI of the MPC
relevantly permits municipalities located within a county or counties to enter into
intergovernmental cooperative agreements for the implementation of zoning ordinances.
4
Comprehensive Plan addresses the existing land uses available within the
Participating Municipalities. Id. at 469a. Per the Comprehensive Plan, the
Township is primarily designated as a “Rural Resource,” which strives to preserve
farmland, open space, woodlands, and other cultural and natural resources. Id. at
471a-72a. Existing land use under the Comprehensive Plan is broken down into
several categories. R.R. at 79a. “Wireless communications facilities” are covered
under the category of “Utilities,” which is allotted one percent of the total acreage
governed by the Comprehensive Plan. Id. at 79a, 82a. Mr. Giannini stated that the
Township is obligated to enact zoning regulations, including those relating to cell
towers, that comply with the policies and goals of the Comprehensive Plan. Id. at
472a-74a. With regard to the installation of cell towers, the Commission wished to
regulate them to prevent any “threat to the scenic vistas and the health and welfare
of the people.” Id. at 480a (emphasis added). The restrictions imposed on cell
towers were not intended to exclude or prohibit their installation but rather to
promote development consistent with the Township’s designation as a rural resource
area. Id. at 484a. The Commission reviewed Cellco’s variance application and
expressed concern that the proposed cell tower would be visible for miles and would
not conform with the spirit of the Comprehensive Plan and Ordinance in “conserving
vistas and scenic resources.” Id. at 486a-88a. Mr. Giannini conceded on cross-
examination that scenic beauty is a subjective concept. Id. at 500a.
C. First ZHB Decision
The ZHB issued a decision on September 5, 2018, denying Cellco’s variance
request, as Cellco failed to establish that the Property had unique physical
circumstances and could not be used in another manner permitted under the
5
Township Ordinance.8 R.R. at 596a. The ZHB further determined Cellco failed to
establish the Township Ordinance violated the TCA, as nothing in the record
suggested that other telecommunications providers were not servicing the area in
which Cellco’s alleged gap in coverage existed. Id. at 597a.
The ZHB agreed with Cellco, however, that the Township Ordinance acted to
exclude the proposed use, as there existed no land available in the Township where
Cellco could locate the cell tower and antennae that would eliminate the gap in
8
Section 910.2(a)(1)-(5) of the MPC provides that an applicant seeking a variance must
establish:
(1) That there are unique physical circumstances or 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
appellant.
(4) That the variance . . . 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 . . . 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)(1)-(5) (emphasis added). The ZHB noted that the Property’s use for the fire
department was permitted under the Township Ordinance. R.R. at 596a.
6
Cellco’s coverage. Id. at 598a. The Property was deemed the most appropriate site
upon which Cellco could locate the cell tower and, thus, the ZHB granted Cellco’s
request for site-specific relief.9 Id.
The Township appealed the ZHB’s decision to the trial court, arguing the ZHB
erred in finding the Township Ordinance was de facto exclusionary to cell towers
because the ZHB failed to consider the Township Ordinance as it applied to the other
municipalities participating in the Comprehensive Plan. Original Record (O.R.) at
9. For this reason, the Township asserted that Cellco failed to prove there were no
other sites within the area of the Comprehensive Plan that could be suitable locations
for the proposed cell tower. Id. The Township further challenged the ZHB’s grant
of site-specific relief, essentially arguing that the ZHB impermissibly rewrote the
Township Ordinance when it concluded the Property was the most appropriate site
to locate the cell tower.10 Id. at 11.
9
Pursuant to Section 1006-A(c) of the MPC, a court may order site-specific relief, which
relevantly provides that, when the court finds that a challenged ordinance unlawfully prevents a
use, the court may order the use approved. 53 P.S. § 11006-A(c), added by the Act of December
21, 1988, P.L. 1329. An unreported opinion from a three-judge panel of this Court suggests in
dicta that “we believe a zoning hearing board does have jurisdiction to determine site specific relief
on appropriate application.” Chester Cty. Outdoor, LLC v. Bd. of Supervisors of Penn Twp. (Pa.
Cmwlth., No. 1599 C.D. 2014, filed July 31, 2014), slip op. at 5, 2014 WL 3778560 (emphasis
added). It should be noted that, in addition to requesting use variance relief, Cellco’s variance
application sought site-specific relief on the basis that the Township Ordinance excluded cell
towers as a use within the Township. R.R. at 11a.
10
The Township does not directly attack the ZHB’s authority to order site-specific relief.
Rather, it suggests that, by ordering that relief, the ZHB rewrote the Township Ordinance and
“usurped the legislative prerogative of the [Township] Board of Supervisors.” The Township cited
no legal authority for the argument that a zoning hearing board may not order site-specific relief,
although the existing jurisprudence is not explicitly clear on this issue.
7
D. First Trial Court Decision
The trial court noted that analysis of whether a particular zoning ordinance
creates a de facto prohibition on a particular use is guided by the two-part test
established by our Supreme Court in Township of Exeter v. Zoning Hearing Board
of Exeter Township, 962 A.2d 653 (Pa. 2009).11 R.R. at 602a. Pursuant to the Exeter
test, the party claiming the de facto prohibition must first show a particular use is
excluded within the township. Exeter, 962 A.2d at 661. Once the challenger has
met this burden of proof, the burden shifts to the municipality to present evidence
demonstrating the exclusionary regulation bears a substantial relationship to the
health, safety, morality, or welfare of the public. Id.
While the trial court agreed that the evidence presented by Cellco
demonstrated a de facto exclusion of a specific use, the trial court held that the ZHB
made no findings with respect to the second part of the Exeter test; namely that the
exclusionary regulation bears a substantial relationship to the health, safety,
morality, or welfare of the public. R.R. at 602a. Recognizing that the Township
was a participant in the Comprehensive Plan, the trial court determined that the ZHB
was required to follow the guidelines of Section 916.1(h) of the MPC.12 Section
916.1(h) of the MPC relevantly provides that, where a municipality participates in a
comprehensive plan and adopts a zoning ordinance that is generally consistent with
11
The ordinance at issue in Exeter prohibited the erection of signs in commercial and
industrial districts that exceeded 25 square feet. Exeter, 962 A.2d at 655. Land Displays, Inc.,
challenged the ordinance as effectively banning the erection of billboards, which were set at 300
or 672 square feet under national industry standards. Id. at 656. Our Supreme Court agreed after
concluding that a 25-square-foot sign could not function effectively as a billboard. Id. at 662. As
the zoning hearing board made no findings with regard to whether the township’s aesthetic and
safety concerns warranted the restrictions, the Supreme Court remanded the matter for a
determination on that issue. Id. at 663.
12
53 P.S. § 10916.1(h), added by the Act of December 21, 1988, P.L. 1329.
8
the provisions of the comprehensive plan, when a party challenges the validity of the
zoning ordinance, the zoning hearing board “shall consider the availability of uses”
under the zoning ordinances of other municipalities within a reasonable geographic
area that also participate in the comprehensive plan. 53 P.S. § 10916.1(h) (emphasis
added). The zoning hearing board “shall not limit its consideration” to the zoning
ordinance of the municipality whose zoning ordinance is being challenged. Id.
The trial court opined that Section 916.1(h) of the MPC required the ZHB to
conduct an analysis regarding the availability of uses under the ordinances of the
other municipalities participating in the Comprehensive Plan.13 R.R. at 603a. As
the ZHB failed to do so, the trial court remanded the matter to the ZHB “to issue
supplemental findings of fact, analyses and conclusions of law as to the application
and consideration of Section [916.1(h)].” Id. at 604a.
E. Second ZHB Decision
Upon remand, the ZHB took no additional evidence and adopted its original
findings and conclusions, including the grant of site-specific relief.14 As it pertained
to the second prong of the Exeter test, the ZHB found that the only testimony
presented by the Township at the earlier hearings was the desire to protect the scenic
vistas and rural quality of the area. Id. at 617a. The ZHB recognized that as a worthy
goal but an insufficient reason to justify the Township Ordinance’s exclusionary
zoning in this matter. Id. at 618a.
13
While the trial court merely quoted the language of Section 916.1(h), it was clear the
only “use” at issue and to be considered was the installation of cell towers within the Township.
14
Pursuant to Section 1005-A of the MPC, appeals brought before the trial court pursuant
to Section 916.1 of the MPC “shall not be remanded for further hearings . . . .” 53 P.S. § 11005-
A, added by the Act of December 21, 1988, P.L. 1329.
9
With regard to Section 916.1(h), the ZHB noted that neither Cellco nor the
Township introduced the ordinances of the other municipalities participating in the
Comprehensive Plan (Municipal Ordinances). Id. at 619a. For this reason, the ZHB
claimed it was unable to consider whether the Municipal Ordinances were able to
cure the exclusionary defect in the Township Ordinance. Id. The ZHB could not
determine which party bore the burden of producing the Municipal Ordinances and
deferred to the trial court’s judgment on this issue. Id.
F. Second Trial Court Decision
The trial court agreed with the ZHB that the Township failed to present
sufficient evidence indicating how the cell tower impacted the health, safety,
morality, or welfare of the public. R.R. at 640a. As for Section 916.1(h), the trial
court determined that once the Comprehensive Plan was introduced, Cellco bore the
burden of producing the Municipal Ordinances and proving that the Comprehensive
Plan, and the Municipal Ordinances adopted pursuant to that plan, excluded cell
towers as a use. Id. at 641a. As Cellco did not introduce the Municipal Ordinances,
the trial court held that the ZHB erred in concluding that the Township Ordinance,
when considered in the context of the Comprehensive Plan, was de facto
exclusionary. Id. As Cellco failed to establish cell towers were de facto excluded
under the Comprehensive Plan and the Municipal Ordinances, the trial court
concluded Cellco was not entitled to site-specific relief and reversed the ZHB. Id.
at 642a. This appeal followed.15
15
This Court’s scope of review where the trial court has not taken additional evidence is
limited to determining whether the local zoning board committed an error of law or an abuse of
discretion. Segal v. Zoning Hearing Bd. of Buckingham Twp., 771 A.2d 90, 94 n.6 (Pa. Cmwlth.
2001). To the extent the issues before this Court rest on our interpretation of the MPC, they present
a question of law for which our standard of review is de novo and our scope of review is plenary.
Newtown Square East, L.P. v. Twp. of Newtown, 101 A.3d 37, 42 (Pa. 2014).
10
II. Issues
On appeal, Cellco argues that the trial court erred in reversing the ZHB where
the substantial and uncontroverted evidence established a de facto exclusion of cell
towers under the Township Ordinance. Cellco further argues the trial court erred in
applying Section 916.1(h) to Cellco’s ordinance challenge and imposing upon
Cellco the burden of producing the Municipal Ordinances.
III. Analysis
Zoning ordinances are presumed to be valid and constitutional. Macioce, 850
A.2d at 887. The party challenging the constitutional16 validity of a zoning ordinance
has the heavy burden of establishing its invalidity. McGonigle v. Lower Heidelberg
Twp. Zoning Hearing Bd., 858 A.2d 663, 668 (Pa. Cmwlth. 2004). To overcome
this presumption of constitutionality, the challenger must demonstrate that the
ordinance totally excludes an otherwise legitimate use. Macioce, 850 A.2d at 887.
A de facto exclusion exists where an ordinance permits a use on its face but, when
applied, acts to prohibit the use throughout the municipality. Id. at 888. As
discussed earlier, the two-part test established in Exeter requires the party
challenging the constitutionality of an ordinance to demonstrate it completely
excludes the proposed use. Exeter, 962 A.2d at 661. Once the challenger has
successfully demonstrated the proposed use is excluded under the ordinance, the
burden shifts to the municipality to present evidence demonstrating the exclusionary
16
Article I, section 1 of the Pennsylvania Constitution protects a citizen’s right to the
enjoyment of private property; governmental interference with this right is restricted by the due
process provisions of the Fifth and Fourteenth Amendments to the United States Constitution.
Surrick v. Zoning Hearing Bd. of Upper Providence Twp., 382 A.2d 105, 107-08 (Pa. 1977); Pa.
Const. art. I, § 1; U.S. Const. amends. V, XIV. See also Appeal of Girsh, 263 A.2d 395, 397 n.3
(Pa. 1970) (an individual should be able to utilize his own land as he sees fit; while zoning is, in
general, a proper exercise of police power which can permissibly limit an individual’s property
rights, use of that police power cannot be unreasonable).
11
regulation bears a substantial relationship to the health, safety, morality, or welfare
of the public. Id.While our standard of review in zoning matters where the trial court has not
taken additional evidence is generally limited to determining whether the local
zoning board committed an error of law or an abuse of discretion, because this Court
is faced with interpreting several provisions of the MPC, our standard of review is
de novo and our scope of review is plenary. Newtown Square East, 101 A.3d at 42;
Segal, 771 A.2d at 94 n.6.
A. De Facto exclusion under Exeter
Cellco argues that the trial court erred in reversing the ZHB where the
evidence plainly establishes the Township Ordinance effectuated a de facto
exclusion of cell towers within the Township. Cellco notes that the trial court, in its
first decision, agreed with the ZHB that the Township Ordinance excluded cell
towers as a use. With regard to the second part of the Exeter test, Cellco asserts the
testimony of the Township’s sole witness, Mr. Giannini, established that the
exclusion in the Township Ordinance was driven by the Township’s desire to protect
its scenic views. Consequently, Cellco maintains that the Township failed to present
evidence that the limitations imposed on cell towers by the Township Ordinance
were related to public health, safety, morality, or welfare issues in the Township.
Cellco further argues that Section 916.1(h) of the MPC is not applicable and,
for this reason, the trial court erred in holding that Cellco was required to prove that
the Municipal Ordinances were likewise exclusionary of cell towers. According to
Cellco, Section 916.1(h) only applies when an ordinance is challenged as
exclusionary on the basis that it does not provide a “fair share” of land within the
municipality for the proposed use. Cellco’s Br. At 23. Once the trial court
12
determined that a de facto exclusion of cell towers existed under the Exeter test,
Cellco contends, no additional analysis was required under Section 916.1(h) of the
MPC.
The principle of “fair share” requires local political units to provide land-use
regulations which meet the needs of all categories of people who may desire to live
within their boundaries. Surrick v. Zoning Hearing Bd. of the Twp. of Upper
Providence, 382 A.2d 105, 108 (Pa. 1977).17 Cellco suggests that In re Petition of
Dolington Land Group, 839 A.2d 1021 (Pa. 2003), “addressed the interplay between
the [“fair share”] analysis and Section 916.1(h).” Cellco’s Br. At 19.
We cannot agree with Cellco’s interpretation of Dolington, as the Supreme
Court expressly declined to address the relationship, if any, between the “fair share”
analysis outlined in Surrick and Section 916.1(h). Dolington, 839 A.2d at 1029-30.
The fair share analysis in Surrick involves application of a three-part test for which
a court must first look to whether the municipality whose ordinance is subject to
challenge is located in an area ripe for development and population growth, or within
the “path of urban-suburban growth.” Surrick, 382 A.2d at 108, 110. The
municipality’s proximity to a large city and its projected population growth figures
are factors to be considered in answering this inquiry. Id. at 110. The issue in
Dolington concerned whether a joint zoning ordinance (JZO) adopted by several
municipalities excluded the development of multi-family dwellings by means of
“fair share” exclusionary zoning. Dolington, 839 A.2d at 1026. The party
challenging the JZO as exclusionary argued that the language in Section 916.1(h)
17
The Supreme Court concluded the “fair share” principle was violated in Surrick, and the
ordinance unconstitutionally exclusionary, where it limited development of apartments to 1.14%
of the township’s land and permitted more than a dozen other uses on this fraction of land. Surrick,
382 A.2d at 111.
13
required the Supreme Court to consider all municipalities participating in the JZO,
not just the municipality in which the subject property was located. Id. at 1027.
Applying the first part of the test from Surrick, whether the municipality lay within
the “path of growth,” the Supreme Court noted that the municipality was located 37
miles from Philadelphia and 18 miles from Trenton, New Jersey. Id. at 1029. No
major highways connected the municipality to those cities and no major employers
were located there or within the surrounding communities. Id. As the municipality
was not within the “path of growth,” the Supreme Court declined to further address
whether the Surrick test should be applied to Section 916.1(h). Id. at 1029-30.18
Prior decisions of this Court have called into question whether the Supreme
Court intended the fair share analysis to apply outside the residential context, given
that the decision in Surrick arose from a history of zoning regulations that excluded
lower income residential development by suburban municipalities. Smith v.
Hanover Zoning Hearing Bd., 78 A.3d 1212, 1221 (Pa. Cmwlth. 2013). Moreover,
the factors set forth in Surrick are specific to residential zoning. Id. See also Hanson
Aggregates Pa., Inc. v. Coll. Twp. Council, 911 A.2d 592, 598 n.6 (Pa. Cmwlth.
2006) (per Surrick, zoning ordinances must provide a variety of housing
opportunities so people are not excluded from living in a community due to race,
class or economic hardship); LaRock v. Bd. of Supervisors of Sugarloaf Twp., 866
A.2d 1208, 1212 (Pa. Cmwlth. 2005) (fair share doctrine enunciated in Surrick
focused on the responsibilities of communities to provide a variety of housing
opportunities).
18
Because the JZO made adequate provision for the future development of multi-family
dwellings, the Supreme Court concluded it did not unconstitutionally exclude that type of housing.
Dolington, 839 A.2d at 1037.
14
Beyond its misapprehension of the holding in Dolington, Cellco cites no legal
authority to support its argument that Section 916.1(h) is only pertinent to fair share
exclusionary zoning. As previously stated, Section 916.1(h) of the MPC provides
as follows:
Where municipalities have adopted a multimunicipal
comprehensive plan pursuant to Article XI . . . and all
municipalities participating in the multimunicipal
comprehensive plan have adopted and are administering
zoning ordinances generally consistent with the provisions
of the multimunicipal comprehensive plan and a challenge
is brought to the validity of a zoning ordinance of a
participating municipality involving a proposed use, then
the zoning hearing board . . . shall consider the
availability of uses under zoning ordinances within the
municipalities participating in the multimunicipal
comprehensive plan within a reasonable geographic area
and shall not limit its consideration to the application of
the zoning ordinance on the municipality whose zoning
ordinance is being challenged.
53 P.S. § 10916.1(h) (emphasis added).
The Supreme Court in Exeter was not interpreting an ordinance adopted
pursuant to a comprehensive plan and was thus not concerned with application of
Section 916.1(h). As such, Exeter cannot be read as prohibiting any consideration
of the Municipal Ordinances by the ZHB or the trial court.
Moreover, Cellco misconstrues the trial court’s conclusions as to the
exclusionary effect of the Ordinance and the ZHB’s findings in that regard. The trial
court acknowledged that, but for the existence of the Comprehensive Plan, it could
have affirmed the ZHB’s conclusion that the Ordinance effected a de facto exclusion
of cell towers in the Township. R.R. at 640a. In light of the Comprehensive Plan,
15
however, the trial court recognized the need for further analysis pursuant to Section
916.1(h). Id.
Cellco does not dispute that the Township Ordinance was adopted to further
the policies and goals of the Comprehensive Plan. The express language of Section
916.1(h) required the ZHB to consider the available uses for wireless communication
facilities under the Municipal Ordinances following Cellco’s challenge to the
Township Ordinance. In the absence of such consideration, the trial court did not
err in concluding that the evidence did not support the ZHB’s grant of site-specific
relief.
B. Burden of Production
Next, we address whether the trial court erred in imposing upon Cellco the
burden of producing the Municipal Ordinances. As to that issue, we disagree with
the trial court’s conclusion that Cellco was obligated to introduce the Municipal
Ordinances in furtherance of the analysis required under Section 916.1(h).
At the outset, we are compelled to point out that the trial court’s remand of
this matter to the ZHB for supplemental findings of fact is governed by Section
1005-A of the MPC, which relevantly provides that, when “proper consideration of
the land use appeal requires the presentation of additional evidence,” the trial court
may remand the case to the zoning hearing board whose decision was brought up for
review, “provided that appeals brought before the court pursuant to section 916.1
shall not be remanded for further hearings . . . .” 53 P.S. § 11005-A (emphasis
added). Given this language, it was the trial court’s obligation, not the ZHB’s, to
take additional evidence on this issue. Reference to this pertinent language from the
MPC is notably absent from the arguments presented by the parties as well as the
opinions of the trial court.
16
The parties and trial court likewise fail to discuss the trial court’s obligation
under Section 1006-A(b.1)19 of the MPC to consider the Municipal Ordinances
following the Township’s appeal. In language mirroring that of Section 916.1(h),
Section 1006-A(b.1) provides that, where a challenge is brought to the validity of a
zoning ordinance of a municipality participating in a multimunicipal comprehensive
plan, “the court shall consider the availability of uses” under the ordinances of other
participating municipalities “within a reasonable geographic area. . . .” 53 P.S. §
11006-A(b.1) (emphasis added). It is clear from the record, and the trial court’s
second decision, that no such consideration took place.
Furthermore, we are hard-pressed to understand the trial court’s singular focus
on Cellco’s failure to produce the Municipal Ordinances given that, in an
exclusionary zoning challenge, the ordinance on its face permits the proposed use.
Macioce, 850 A.2d at 888. The exclusionary nature of the ordinance is only apparent
when applied. Id. In demonstrating that the Township Ordinance excluded cell
towers as a use, Cellco’s witnesses testified as to the efforts they made to locate a
suitable location within the LI and LLI districts upon which they could install the
proposed cell tower and antennae. Mr. Martinelli, for example, explained why
placement of the cell antennae on existing structures within the Township was not
feasible and Mr. Fischer testified as to the impact the Township’s topography had
on a cell tower’s ability to provide the necessary coverage. It stands to reason that
Cellco must likewise develop the record to establish the Municipal Ordinances
exclude cell towers as a use.
It is not clear why the trial court did not fulfill its appellate responsibility given
the express language of Section 1006-A(b.1) of the MPC. As such, we are
19
Section 1006-A of the MPC, generally, establishes the relief a trial court may order
following appeal. 53 P.S. § 11006-A.
17
constrained to remand this matter to the trial court to take additional evidence on the
availability of cell towers as a use under the Municipal Ordinances within a
reasonable geographic area, as mandated by Section 1006-A(b.1).
While we have concluded a remand to the trial court is required in this matter,
we are not entirely persuaded that the Township Ordinance unconstitutionally
excludes all cell towers as a use within the Township or if it merely impacts Cellco’s
ability to place a cell tower in the location that best serves Cellco’s business needs.
While Mr. Martinelli’s testimony indicates that the area within Cellco’s search ring
lacks reliable coverage by Cellco, there is no evidence to suggest that other wireless
providers are similarly unable to provide reliable coverage in that area or that they
are also de facto excluded from installing cell towers within the Township.
IV. Conclusion
For the reasons set forth herein, we vacate the order of the trial court and
remand to the trial court for further development of the record and consideration of
the Municipal Ordinances within a reasonable geographic area, pursuant to Section
1006-A(b.1) of the MPC.
__________________________________
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Upper Salford Township :
:
v. : Nos. 883 and 1162 C.D. 2019
:
Zoning Hearing Board of Upper :
Salford Township and Cellco :
Partnership d/b/a Verizon Wireless :
:
Appeal of: Cellco Partnership d/b/a :
Verizon Wireless :
ORDER
AND NOW, this 9th day of July, 2020, the August 12, 2019 order of the Court
of Common Pleas of Montgomery County (trial court) is hereby vacated, and this
matter is remanded to the trial court for consideration of the availability of uses under
the ordinances of other municipalities within a reasonable geographic area that
participate in the Indian Valley Regional Comprehensive Plan, as required by
Section 1006-A(b.1) of the Pennsylvania Municipalities Planning Code.1
Jurisdiction is relinquished.
__________________________________
ELLEN CEISLER, Judge
1
The Act of July 31, 1968, P.L. 805, as amended, added by the Act of June 22, 2000, P.L.
483, 53 P.S. § 11006-A(b.1).