SBA Towers II, LLC v. ZHB of Logan Twp. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
SBA Towers II, LLC, :
Appellant :
:
v. : No. 440 C.D. 2020
: Submitted: December 7, 2020
Zoning Hearing Board of :
Logan Township :
:
v. :
:
Tarpon Towers II, LLC :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: January 22, 2021
Appellant SBA Towers II, LLC (SBA Towers) appeals from an order of the
Court of Common Pleas of Blair County (common pleas), dated March 30, 2020.
Common pleas affirmed the decision of the Zoning Hearing Board of Logan
Township (ZHB), thereby denying SBA Towers’ appeal of the approval of Tarpon
Towers II, LLC’s (Tarpon) and Cellco Partnership d/b/a Verizon Wireless’s
(Verizon) application for a special exception or a use variance (Application).
For the reasons discussed below, we vacate and remand.
1
This case was assigned to the opinion writer prior to January 4, 2021, when Judge Brobson
became President Judge.
Orchard Plaza Station LLC (Orchard) is the owner of certain real property
(Property) located at 415 Orchard Avenue, Logan Township (Township),
Blair County, Pennsylvania. Tarpon entered into a lease agreement with Orchard
for the lease of a 45-foot by 45-foot section of the Property for the construction,
support, and operation of a communications tower upon which Verizon planned to
collocate its antennas. The Property is located in a Business District.
The Township’s Zoning Ordinance (Ordinance) does not specifically permit
communications towers in a Business District. Section 801(1) of the Ordinance,
however, incorporates all buildings, structures, and uses permitted in an R-2 District
into a Business District, and Section 701(1) of the Ordinance incorporates all
buildings, structures, and uses permitted in an R-1 District into an R-2 District.
Pursuant to Sections 501(2) and 1001(A)(9) of the Ordinance, communications
towers are permitted in an R-1 District by special exception, provided that the
applicant establishes that the criteria set forth in Section 1019 of the Ordinance2 have
been met. The Ordinance also permits the ZHB to grant a use variance in the event
of unnecessary hardship, but the applicant must establish that the criteria set forth in
Section 1108(1) of the Ordinance have been met.
On June 15, 2017, Tarpon and Verizon filed their Application with the ZHB,
seeking a special exception or a use variance to construct a 165-foot-tall monopole
communications tower at the Property, as well as a variance from the requirement
set forth in Section 1019(11) of the Ordinance to provide a landscape screen between
the communications tower and abutting properties.3 The ZHB conducted public
2
Section 1018 of the Ordinance also sets forth certain regulations applicable to
communications antennas and communications equipment buildings.
3
Based upon our review of the Application, it appears that Tarpon and Verizon were
seeking a special exception to construct a communications tower at the Property. (See Reproduced
(Footnote continued on next page…)
2
hearings on the Application on July 27, 2017, and August 17, 2017. SBA Towers,
which operates a communications tower (SBA Tower) located immediately south of
Tarpon’s proposed communications tower at 400 Highland Avenue and upon which
Verizon’s antennas are currently mounted, was present at the August 17, 2017
hearing and objected to the Application.
On September 6, 2017, the ZHB rendered its decision, granting the
Application. SBA Towers appealed the ZHB’s decision to common pleas, and
common pleas permitted Tarpon to intervene based upon a stipulation of the parties.
Thereafter, on August 27, 2018, SBA Towers filed a motion to allow the submission
of additional evidence. By order dated November 9, 2018, common pleas granted
SBA Towers’ motion and appointed a referee to preside over the hearing of the
additional evidence. The referee held a hearing on February 7, 2019, and the
transcript from such hearing was filed with common pleas and made part of the
evidentiary record.
Thereafter, by opinion and order dated March 30, 2020, common pleas
affirmed the ZHB’s decision and denied SBA Towers’ appeal of the ZHB’s approval
Record (R.R.) at 108a-20a.) SBA Towers contends, however, and we agree, that the ZHB did not
identify whether it was evaluating the Application as a request for a special exception or a request
for a use variance. In fact, there appears to be some disagreement as to whether the ZHB was
required to consider the Application as a request for a special exception under
Sections 501(2) and 1001(A)(9) of the Ordinance or a request for a use variance under
Section 1108(1) of the Ordinance. (See ZHB Decision at 2; see also SBA Towers’ Br. at 4, 9-21.)
Common pleas appears to have considered the Application as a request for a use variance.
(See Common Pleas’ Op. at 7.) On remand, common pleas must identify whether it is evaluating
the Application as a request for a special exception or a request for a use variance, specifically
explaining its reasons for doing so, and then apply the relevant provisions of the Ordinance and
the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as
amended, 53 P.S. §§ 10101-11202, as explained more fully below.
3
of the Application. Cognizant of its standard of review given that it took additional
evidence, common pleas made the following relevant findings of fact:
23. [Verizon] provides commercial mobile radio services, personal
and advanced wireless services, and other telecommunications
services . . . in the Commonwealth of Pennsylvania
[(Commonwealth)], including in the Township and surrounding
areas.
24. Tarpon constructs, owns, and manages wireless communications
facilities in [the Commonwealth] and elsewhere in the country.
25. Similar to SBA [Towers], Tarpon leases space on its facilities to
national and regional wireless carriers who [sic] provide personal
and advanced wireless services, as well as other
telecommunications services . . . .
26. In providing valuable service to wireless carriers, Tarpon is
facilitating the development and deployment of advanced
wireless and broadband connectivity consistent with the goals of
the [Telecommunications Act of 1996 (TCA), 47 U.S.C.
§§ 151-624, 641-646], which governs federal, state and local
government regulation of the siting of personal wireless service
facilities. 47 U.S.C. § 332(c)(7)(B).
27. Tarpon also leases space on its facilities to federal, state, and
local first responders, law enforcement, and public safety
agencies.
28. [Verizon] is seeking to facilitate the maintenance and
development of a wireless telecommunications network in
keeping with the goals of the TCA.
29. [Verizon] uses licenses issued by the Federal Communications
Commission [(FCC)] pursuant to 47 U.S.C. § 151 to provide
wireless service in the Township.
30. Section 151 of the TCA establishes a national policy to “make
available,[] so far as possible, to all people of the United States,
without discrimination . . . a rapid, efficient, nationwide, and
worldwide wire and radio communication service with adequate
facilities at reasonable charges, for the purpose of national
defense, [and] for the purpose of promoting safety of life and
property through the use of wire and radio communications.”
47 U.S.C. [§] 151. To meet these policy goals, [Verizon] seeks
4
to provide a myriad of wireless services to local businesses,
public safety entities and the general public.
31. Likewise, to advance the national policies enumerated under
47 U.S.C. § 151 and repeatedly reiterated by the FCC, Tarpon
constructs towers and other wireless facilities that allow wireless
carriers, such as [Verizon], to create and maintain a network of
“cell sites,” each of which consists of antennas and related
electronic communications equipment designed to send and
receive radio signals.
32. To provide reliable service to a user, coverage from cell sites
must overlap in a grid pattern resembling a honeycomb.
If Tarpon is unable to construct a cell site within a specific
geographic area, the wireless carriers it serves, such as [Verizon],
will not be able to provide service to the consumers within that
area.
33. Because the communications tower is proposed to be located in
the Business [D]istrict (a district where towers are not provided
for under the . . . Ordinance), [Tarpon and Verizon] were
required to demonstrate compliance with the TCA.
34. Tarpon demonstrated compliance with the TCA through its
project narrative and corresponding exhibits, as well as
uncontroverted expert testimony.
....
48. Consistent with the . . . Ordinance, [Verizon’s] radio frequency
design manager, Jim Rickard, provided substantial evidence and
testimony that no collocation opportunities exist within a
quarter-mile radius of the proposed communications tower.
49. [Tarpon and Verizon] provided substantial evidence and
testimony that [Verizon’s] antennas are located on [the SBA
Tower].
50. In previous attempts to provide a reliable wireless signal to [the]
Township, [Verizon] partnered with [SBA Towers] to attach
antennas to SBA’s [T]ower. However, since approximately
November 2015, [Verizon] has been unable to guarantee reliable
wireless service from the SBA [T]ower.
51. [Verizon] project manager, Melissa Haluszczak, oversees
property management issues in [Verizon’s] Ohio, Pennsylvania,
and West Virginia . . . market.
5
52. Ms. Haluszczak explained that a cell tower is typically located
within a fenced compound. Adjacent to the base of the tower is
an equipment shelter that houses the ground[-]based equipment
which service each wireless provider attached to the tower.
The equipment shelters are visited routinely by technicians to
perform routine maintenance.
53. [Verizon] technicians and contractors informed Ms. Haluszczak
that they repeatedly were denied access to the SBA [T]ower to
perform air conditioning upgrades and other innumerable
maintenance needs at the facility.
54. Ms. Haluszczak testified that 24-7 access to cell sites is critical
for wireless providers to propagate a reliable signal.
55. 24-7 access to a cell site is critical to a wireless provider’s ability
to maintain a reliable signal. This need is especially critical
given that approximately 80% of 911 calls originate from a cell
phone.
56. [Mr.] Rickard stated that moving from [the] SBA [T]ower to
Tarpon’s [proposed] tower would help [Verizon] maintain its
coverage in the area, as well as allow for the needed expansion
to handle technological upgrades at their sites, which include
larger antennas, radio transmitters on the ground, while also
having the ability to maintain their facilities. Consequently,
Mr. Rickard concluded that [the] SBA[ T]ower cannot
accommodate [Verizon’s] existing or future needs.
(Common Pleas’ Op. at 8-14.) Based upon those findings of fact and its own
independent review of the evidence, common pleas concluded:
[This court] agree[s] with [Tarpon’s] and the [ZHB’s] positions on this
litigation. [This court] believe[s] that [Tarpon] presented sufficient
evidence that granting [the A]pplication would help [Verizon] maintain
its coverage in the area. Importantly, [this court] also believe[s] that
the testimony provided that the granting of the [A]pplication would
allow for needed expansion to handle technological upgrades and that
the [SBA Tower] would not allow for them to maintain coverage in the
same manner nor would it provide for the ability to accomplish the
needed expansion to handle technological upgrades. Therefore, this
[c]ourt finds that the [ZHB] did not error [sic] in granting the
[A]pplication.
6
(Common Pleas’ Op. at 17.) SBA Towers thereafter appealed common pleas’
decision and order to this Court.4
On appeal,5 SBA Towers argues that common pleas committed an error of law
and/or abused its discretion by affirming the ZHB’s decision to grant the Application
because: (1) neither the ZHB nor common pleas provided sufficient findings of fact
or an adequate explanation to support a conclusion that Tarpon and Verizon satisfied
the criteria necessary for the grant of a use variance; (2) neither the ZHB nor
common pleas provided sufficient findings of fact or an adequate explanation to
support a conclusion that Tarpon and Verizon satisfied the requirements necessary
for the grant of a special exception; and (3) the TCA does not “trump” local zoning
regulations. Stated another way, SBA Towers contends that the ZHB and common
pleas were not required to approve the Application based solely upon an alleged gap
in Verizon’s coverage. Rather, the ZHB and commons pleas were required to
consider whether Tarpon and Verizon satisfied all of the requirements set forth in
the Ordinance and the MPC for a special exception or a use variance and thereafter
deny the Application if such requirements were not satisfied.6 In response, Tarpon
4
On June 24, 2020, following the submission of SBA Towers’ concise statement of errors
complained of on appeal, common pleas issued an opinion pursuant to Pennsylvania Rule of
Appellate Procedure (Rule) 1925(a). In that Rule 1925(a) opinion, common pleas noted that, with
one possible exception relative to access to the SBA Tower, its March 30, 2020 opinion addressed
the reasons for its decision, and, therefore, it incorporated its March 30, 2020 opinion into its
Rule 1925(a) opinion.
5
Given that common pleas took additional evidence in this case and considered the matter
de novo, this Court’s standard of review “is confined to determining whether [the common pleas
court] abused its discretion or committed an error of law.” Bd. of Supervisors of Upper Merion
Twp. v. Wawa, Inc., 505 A.2d 645, 646 (Pa. Cmwlth. 1986).
6
SBA Towers, without consideration of the effect of common pleas’ decision to accept
additional evidence, also argues that the ZHB committed an error of law by relying upon evidence
outside of the record relative to a former communications tower application. Given that we are
(Footnote continued on next page…)
7
contends that common pleas properly affirmed the ZHB’s decision granting the
Application, because Tarpon and Verizon presented substantial evidence to establish
compliance with the TCA—i.e., Tarpon and Verizon established that there is a
significant gap in the ability of remote users to access the national telephone network
and that the proposed communications tower is the least intrusive means of
remedying such gap.
“Section 332(c)(7) of the [TCA] 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, Bucks
Cnty., Pa., 748 F. Supp. 2d 437, 441 (E.D. Pa. 2010) (quoting 47 U.S.C.
§ 332(c)(7)(A)). Despite these limitations, however, Section 332(c)(7) also
preserves the state and local governments’ authority to regulate zoning. It provides,
in pertinent 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 [s]tate or local government or
instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service
facilities.
(B) Limitations
reviewing common pleas’ opinion and order, not the ZHB’s decision, we will not address this
argument. SBA Towers further argues that the basis for the allegation of a gap in Verizon’s
coverage—i.e., Verizon’s lack of access to the SBA Tower—was resolved by the Pennsylvania
Superior Court in SBA Towers II LLC v. Wireless Holdings, LLC, 231 A.3d 901 (Pa. Super.),
appeal denied, 240 A.3d 105 (Pa. 2020). Given our disposition of this matter, we need not address
this issue. We note, however, that the effect of the Superior Court’s decision on the Application,
if any, is something that can be addressed by the ZHB and/or common pleas on remand.
8
(i) The regulation of the placement, construction, and
modification of personal wireless service facilities by any [s]tate
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.
47 U.S.C. § 332(c)(7).
This Court recently considered the meaning and scope of the limitation
set forth in Section 332(c)(7)(B)(i)(II) of the TCA and whether such provision
preempts the MPC and/or local zoning regulations with respect to the placement of
communications towers in Fairview Township v. Fairview Township Zoning
Hearing Board, 233 A.3d 958 (Pa. Cmwlth. 2020) (en banc). In Fairview Township,
the applicant submitted two separate variance applications to the local zoning
authority, seeking approval to construct wireless telecommunications facilities at
two separate properties. Following a hearing, the local zoning authority granted the
applicant’s variance requests. The township appealed the local zoning authority’s
decision to the court of common pleas. After reviewing the matter de novo, the court
of common pleas found that the applicant had satisfied all of the elements necessary
for a variance with respect to one of the properties but had failed to satisfy three out
of the five elements necessary for a variance with respect to the other property.
Nonetheless, the court of common pleas granted the variance requests for both
properties, because it concluded that the TCA prohibited the denial of the variance
requests under the circumstances. The township appealed to this Court, and we
reversed. In so doing, we concluded that the TCA does not preempt the MPC and/or
local zoning regulations, but rather permits a local zoning authority to deny an
application for the construction of a communications tower if there is a bona fide
local zoning concern. We reasoned:
9
In applying [Section 332(c)(7)(B)(i)(II)] of the TCA, the [court
of common pleas] 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 [Pittsburgh Limited Partnership v. Penn
Township Butler County of Pennsylvania, 196 F.3d 469 (3d Cir. 1999)];
or (2) that there is a significant gap in service in any area for that
particular service provider. The [court of common pleas] noted that,
in 1999, the [United States Court of Appeals for the] Third Circuit
[(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. The [court of common pleas] noted
that “[i]n response to this ‘circuit split,’ the FCC in 2009 issued its
Declaratory Ruling[,]” wherein it rejected the “one 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. The [court of common pleas] stated that although the
Third Circuit has not yet addressed the FCC’s 2009 Declaratory Ruling,
the [United States District Court for the] Eastern District of
Pennsylvania has concluded this Ruling is entitled to deference.
Accordingly, the [court of common pleas] 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.” Additionally, in its subsequent
[Rule] 1925(a) opinion, the [court of common pleas] 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.
The [t]ownship, 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 presence in the area,
without having to establish the requirements for a variance and without
any regard for zoning, the MPC[,] or the neighborhood. The [t]ownship
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.
The [t]ownship asserts the TCA expressly preserves a local
municipality’s ability to zone where towers are placed.
10
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 [s]tate or local
government to deny a personal wireless service facility siting
application solely because that service is available from another
provider.” 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.”
Accordingly, given this language in the FCC’s 2009 Declaratory
Ruling, we agree with the [t]ownship 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, the [court of common pleas], 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 [first
p]roperty, the [court of common pleas] found that [the applicant] failed
to establish three of the five elements necessary for a variance.
Specifically, the [court of common pleas] found that [the landowner’s]
purpose of entering into the lease with [the applicant] to construct the
telecommunications tower was to earn additional revenue and that,
therefore, the unnecessary hardship criterion was not satisfied.
The [court of common pleas] also found that there were no unique
physical circumstances or conditions of the [first] property causing
unreasonable hardship. In fact, the [court of common pleas] noted that
[the landowner] is presently making reasonable use of the
[first p]roperty and has been doing so in excess of 20 years. Lastly,
the [court of common pleas] found that any unnecessary hardship was
self-inflicted because [the landowner] agreed to subdivide the
[first p]roperty and, as a result, needed dimensional variances.
11
These reasons have nothing to do with whether service is available from
another provider or whether [the wireless service provider] needed to
densify, expand 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
[the wireless service provider]. The decision with respect to the
[first p]roperty 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 court of
common pleas’] decision, [that the applicant] failed to establish the
requisite hardship to entitle it to a variance for the [second p]roperty.
This, too, is a bona fide local zoning concern and has nothing to do with
whether service is available from another provider or whether
[the applicant] needs to densify, expand or otherwise improve its
network.
In short, the presence of other carriers, or the condition of
[the wireless service provider’s] coverage, did not play a role in the
variance determinations for either [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.” Indeed,
we have stated that “[n]ot every municipality’s denial of an application
to build a wireless facility violates the TCA.”
The effect of the [court of common pleas’] application of the
TCA is that simply because a gap in [the wireless service provider’s]
coverage exists, and the proposed towers are the least intrusive way to
remedy the gap, [the applicant] 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 [court of common pleas’] 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
12
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 [court of common pleas’] 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.
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 [s]tate 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) [of the TCA,] . . . they may deny
such applications if the denial is “supported by substantial evidence
contained in a written record.” 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 [s]tate and local authorities of their
Section 332(c)(7) zoning rights. Rather, we construe the
[TCA] statute to bar [s]tate 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; [s]tate and local authority to base zoning
regulation on other grounds is left intact by this ruling.
The FCC again noted that its ruling preserves state and local authority
to reasonably regulate, stating:
Our determination also serves the [TCA’s] goal of
preserving the [s]tate 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.
13
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.
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.” The FCC added:
our interpretation remains faithful to the purpose of
Section 332(c)(7) [of the TCA] 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
interpretation, states and localities retain their authority
over personal wireless facilities deployment.
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.’” The TCA “was intended to promote competition by
limiting the ability of local authorities to regulate and control the
expansion of telecommunications technologies.” 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.”
For the foregoing reasons, the [court of common pleas] erred in
concluding that the variances had to be granted merely because a gap
in [the wireless service provider’s] coverage existed. The subject
denials were not based solely upon another provider’s ability to provide
coverage in the gap or based upon [the wireless service provider’s]
existing coverage, but, rather, were based upon a lack of hardship.
Id. at 967-72 (emphasis in original) (footnotes omitted) (citations omitted).
14
Here, it appears that both the ZHB and common pleas granted the Application
because they believed that the TCA required them to do so under the circumstances.
In other words, the ZHB and common pleas granted the Application based solely on
the existence of an alleged gap in Verizon’s coverage and never considered whether
Tarpon and Verizon had satisfied all of the elements necessary under the Ordinance
and/or the MPC for a special exception or use variance—i.e., whether a bona fide
local zoning concern existed. This constitutes error. See Fairview Twp., 233 A.3d
at 967-72. In deciding whether to grant the Application for the construction of the
communications tower at the Property, the ZHB and common pleas were required
to consider not only whether Tarpon and Verizon met the requirements of the TCA,
but also whether Tarpon and Verizon met the requirements of the Ordinance and the
MPC for a special exception or a use variance. Because they did not do so, we must
conclude that common pleas committed an error of law by affirming the ZHB’s
decision.
Accordingly, we vacate common pleas’ order and remand the matter to
common pleas to issue a new decision and order consistent with this opinion.
P. KEVIN BROBSON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
SBA Towers II, LLC, :
Appellant :
:
v. : No. 440 C.D. 2020
:
Zoning Hearing Board of :
Logan Township :
:
v. :
:
Tarpon Towers II, LLC :
ORDER
AND NOW, this 22nd day of January, 2021, the order of the Court of Common
Pleas of Blair County (common pleas) is hereby VACATED, and the
above-captioned matter is REMANDED to common pleas to issue a new decision
and order consistent with the attached opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge