Ogden Fire Co No 1 v. Upper Chichester Twp

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
10-4-2007
Ogden Fire Co No 1 v. Upper Chichester Twp
Precedential or Non-Precedential: Precedential
Docket No. 06-2297
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PRECEDENTIAL
UNITED STATE COURT OF APPEALS
FOR THE THIRD CIRCUIT
06-2297/07-1694
OGDEN FIRE COMPANY NO. 1;
SPRINT SPECTRUM, L.P.
Appellees
v.
UPPER CHICHESTER TOWNSHIP; ZONING HEARING
BOARD OF UPPER
CHICHESTER TOWNSHIP,
Appellants
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(05-cv-01031)
District Judge: Hon. John R. Padova
Argued: May 21, 2007
Before: McKee, Ambro, Circuit Judges and
Ackerman,* District Judge
*
The Honorable Harold Ackerman, Senior District Judge
of the United States District Court for the District of New
Jersey, sitting by designation.
1
(Opinion filed: October 4, 2007 )
JOHN J. RENDEMONTI, ESQ. (Argued)
14 Regency Plaza
Glenn Mills, PA 19342
HOWARD J. GALLAGHER, III, ESQ.
Gallagher & Gallagher
18 East Second Street
P.O. Box 348
Media, PA 19063
Attorneys for the Appellants
RUDOLPH GARCIA, ESQ. (Argued)
Buchanan, Ingersoll & Rooney PC
1835 Market Street, 14th Floor
Philadelphia, PA 19103
JOHN JAY WILLS, ESQ.
4124 Chichester Avenue
Boothwyn, PA 19061
Attorneys for the Appellees
OPINION
McKEE, Circuit Judge.
Upper Chichester Township and the Zoning Hearing
Board of Upper Chichester Township appeal two orders of the
district court reversing a determination of the Zoning Hearing
2
Board based upon the district court’s conclusion that the denial
of requested zoning approvals and a building permit violated
the Telecommunications Act of 1996. For the reasons that
follow, we will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ogden Fire Company No. 1 (“Ogden”), is a volunteer
fire company that provides fire, ambulance, and rescue services
to the residents of Upper Chichester Township, Delaware
County, Pennsylvania and surrounding areas. It responds to
approximately 550 requests for assistance per year. Ogden’s
firehouse is located in a zoning district that is classified as an R-
2 Medium Density Residential District. Ogden uses the
Delaware County Emergency Radio Center radio service (the
“County System”), which is a 500 MHZ system with three
repeaters located throughout Delaware County. This system is
associated with the 911 system. Ogden experiences coverage
3
problems in certain areas of the Township. To make matters
worse, the County System is not accessible to all public-safety
personnel.
Ogden also shares a 150 MHZ radio system (the “Local
System”) within the Township with other fire companies, local
police, school crossing guards and street maintenance crews.
However, the Local System does not have repeaters and cannot
reach all areas of the Township. The resulting gap in coverage
over the Local System has resulted in problems that include fire
fighters not being able to communicate with police. The
problems have been building for the last ten years and occur on
an almost daily basis. In fact, according to testimony on this
record, poor radio communication has contributed to the deaths
of two people.
Sprint Spectrum, L.P .(“Sprint”), provides personal
communications services (“PCS”) over a network of wireless
4
telecommunications facilities (“WCF”) pursuant to a license
from the Federal Communications Commission (“FCC”).
Portable telephones and devices using PCS technology operate
by sending and receiving radio signals transmitted between the
telephone or device and antennas mounted on towers, poles,
buildings or other structures. The antennas are connected to
transmitters that transmit the signals over landlines that are part
of the national telephone network. These antennas and the
related equipment are commonly known as a “cell site,” and the
surrounding area serviced by the antenna, and its associated
equipment, is commonly referred to as a “cell.”
Telecommunication providers cannot provide reliable
service to mobile customers unless there is a continuous series
of overlapping cells arranged in a honeycomb-like grid. Absent
such interwoven fields of coverage, a user experiences
unreliable service upon entering an area without a functioning
5
cell. These problems include the inability to make or receive
calls as well as dropped, interrupted, and/or unintelligible calls.
Because portable telephones have very little power, they
need to be within two miles of a cell site to function properly,
and, the quality of the communication decreases as the distance
to the cell site approaches the two mile perimeter. Accordingly,
the cells must be closely placed. Sprint’s engineers use
complex computer programs to determine appropriate locations
for cell sites based upon such variables as the boundaries of the
cell, topography, and any physical obstructions within the area
of coverage.
In order to correct the problems it has encountered with
its communications system, Ogden proposed building a radio
operations center inside its firehouse at 4300 Naamans Creek
Road and a 130 foot radio tower in the rear yard of the
firehouse. It is, however, difficult for a volunteer fire company
6
to afford the construction costs of such a project. Accordingly,
Ogden and Sprint entered into an agreement that would have
addressed Ogden’s communications problem and safety
concerns while alleviating Sprint’s problems with the gaps in its
coverage in the vicinity of Ogden’s firehouse.
Pursuant to that agreement, Ogden and Sprint
(hereinafter referred to jointly as “Ogden/Sprint”) filed a joint
application with the Zoning Board on August 31, 2004, for
approval of the erection of a steel monopole 130 feet high for
mounting emergency service and wireless telecommunications
antennas. With Sprint’s antennas on the top of the monopole
would increase the total height of the tower to 133 feet. Sprint
was to install the tower to meet both its needs and Ogden’s
needs and then pay monthly rent to Ogden. The Zoning
application asked the Board to:
(1) find that the proposed monopole and related
7
radio equipment are permitted as an accessory use
to the permitted fire company use on the subject
property pursuant to § 303.1 or § 304 of the
Zoning Ordinance;1 (2) grant a variance from the
height limitation of § 305.8 of the Zoning
Ordinance; (3) approve a special exception for
Sprint's proposed wireless communications
facility pursuant to §§ 303.7, 1814 and 2106(2) of
the Zoning Ordinance; or, in the alternative, (4)
grant a variance from the use provisions of § 302
of the Zoning Ordinance to allow the proposed
monopole, equipment and use.
Ogden Fire Co. No. 1 v. Upper Chichester Twp., No. 05-1031,
2006 WL 851391, *2 (E.D. Pa. Mar. 30, 2006) (“Ogden I”).
During the zoning hearings that followed, Ogden/Sprint
presented the testimony of several witnesses to establish that:
the tower and equipment were necessary, the tower was an
1
In 1969, the Township Zoning Hearing Board had
granted a special exception to Ogden to use its property as a
“public use” under § 303.1 of the Township’s Zoning
Ordinance.
8
accessory use to the firehouse,2 Ogden’s use of the tower would
be “a municipal or public use,” the tower would satisfy the
special exception criteria regarding the height of the monopole
as an “accessory structure,” and, if not, that Ogden/Sprint were
entitled to a variance. They also asked the Board to recognize
that other carriers providing functionally equivalent services
have been granted greater relief than that requested by
Ogden/Sprint, and that the proposed monopole/tower was the
least intrusive means of addressing Sprint’s gap in coverage in
the Township.
A. The Zoning Board’s decision.
On February 10, 2005, the Zoning Board denied the
2
The Zoning Ordinance defines “accessory uses” to
include: “any accessory use on the same lot with and
customarily incident to any of the uses permitted above and not
detrimental to the neighborhood.” Zoning Ordinance, §§ 204,
304.
9
application in a written opinion that treated the joint application
of Ogden/Sprint as one filed solely by Sprint. According to that
interpretation, Sprint was requesting Zoning Board approval to
construct its own WCF tower, and Ogden would thereafter
attach its radio antenna to the tower to enhance Ogden’s
communication systems. The Zoning Board concluded that
Sprint had not established the propriety of erecting a stand-
alone WCF tower in an R-2 Residential District. The Board
concluded that the WCF was not an accessory structure to the
firehouse because it was not a use “customarily incidental and
subordinate to the principal use of the land or building and
located on the same lot with such principal use.” Ogden I, 2006
WL 851391 at *3. The Board also refused to grant the special
exception required to build a tower taller than 15 feet because
the WCF is not an accessory use or structure to the firehouse.
The Board refused to grant a special exception to build the
10
WCF because stand-alone WCF towers are not permitted in R-2
Residential Districts. Finally, the Board also rejected the
alternate request for a variance because a 133 foot stand-alone
WCF tower is not a structure permitted in an R-2 Residential
District and because Sprint had not satisfied the requirements
for a variance under the Pennsylvania Municipal Planning
Code.
II. DISTRICT COURT PROCEEDINGS
Ogden/Sprint responded by filing a joint complaint
against the Township and Zoning Board (hereinafter
collectively referred to as the “Township”) in district court
alleging violations of the Telecommunications Act of 1996
(“TCA”), 47 U.S.C. § 332, and related claims. In Count I,
Ogden/Sprint alleged that the Township violated 47 U.S.C. §
332(c)(7)(B)(i)(I) by unreasonably discriminating among
providers of functionally equivalent services in denying
11
Ogden/Sprint’s joint application despite having previously
approved a similar application filed by Reliance Hook and
Ladder Co. No. 1 and Metro Phone in an R-2 Residential
District, and having also previously approved the application of
AT&T Wireless to build a telecommunications tower in an R-1
Residential District. Count II alleged that the Township
violated 47 U.S.C. § 332(c)(7)(B)(iii) because the denial of the
Ogden/Sprint application was not supported by substantial
evidence. Count III asserted various causes of action under
state law that we need not address.
After the close of discovery, the parties filed cross-
motions for summary judgment. In a very thorough and well
reasoned Memorandum Opinion, the district court granted
summary judgment in favor of Ogden/Sprint on their claims
under the TCA. See Ogden I, 2006 WL 851391. In ordering
relief, the court ordered the Township:
12
to grant the application of Ogden Fire Co. No. 1
and Sprint Spectrum, L.P., to build a 130 foot
monopole radio tower and related radio
equipment as an accessory use to Ogden’s use of
its property as a firehouse and to issue the
Plaintiffs the requested special exceptions in
accordance with Zoning Ordinance §§ 1706 and
303.7. Upper Chichester Township shall issue
any and all zoning permits for the proposed tower
and supporting structures within 30 days of the
date of this Order.3
Id. at *21. The Township has appealed that Order. That appeal
is No. 06-2297.
On May 3, 2006, the Zoning Board granted the special
exceptions to Ogden/Sprint. However, Ogden/Sprint’s
3
In Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d
490, 497 (2d Cir. 1999), the Court of Appeals for the Second
Circuit commented that “[t]he TCA does not specify a remedy
for violations of the cellular siting subsection.” Id. However,
“[t]he majority of district courts that have heard these cases
have held that the appropriate remedy is injunctive relief in the
form of an order to issue the relevant permits.” Id. (citations
omitted). In Omnipoint Corp. v. Zoning Hearing Bd. of Pine
Grove Twp. (“Pine Grove II”), 181 F.3d 403, 410 (3d Cir.
1999), we held that “[i]njunctions are proper forms of relief
under § 332(c)(7)(B)(v).” Inasmuch as the district court’s
order was in the form of an injunction, it remains in effect and
must be complied with during the pendency of this appeal. See
Fed.R.Civ.P. 62(a).
13
application for a building permit in order to build the radio
tower was denied by the Township’s Building Inspector
because the Building Inspector determined that the lease4 of that
portion of Ogden’s rear yard to Sprint where the radio tower
was to be built was the division or allocation of land by means
of a leasehold. According to the Building Inspector, it therefore
required the approval of a Subdivision and Land Development
Application pursuant to the Township’s Subdivision and Land
Development Ordinance and Section 107(a) of the Pennsylvania
Municipalities Planning Code (“MPC”). Ogden/Sprint
thereafter filed a motion to compel the issuance of a building
permit in district court and requested monetary sanctions.
On January 17, 2007, the district court issued an Order-
Memorandum. Ogden Fire Co. No. 1 v. Upper Chichester
Twp., No. 05-1032, 2007 WL 137848 (E.D. Pa. Jan. 17, 2007)
4
Rather than assigning Sprint a position on the radio
tower, Ogden leased 2,500 square feet of its real property to
Sprint for the purpose of constructing, operating and
maintaining the tower and related equipment.
14
(“Ogden II”). It noted that under Pennsylvania law, leases
which allocate land, as opposed to assigning positions on a pole
or tower, constitute a subdivision or allocation of land pursuant
to § 107(a) of the MPC. Id. at *2 (citing Upper Southampton
Twp. v. Upper Southampton Twp. Zoning Hearing Board, 885
A.2d 85, 92 (Pa. Commw. Ct. 2005), appeal granted, 895 A.2d
1265 (Pa. 2006)). However, the district court reasoned that
there was nothing in the record before it that would support the
denial of a Subdivision and Land Development Application or
the issuance of a building permit. Id. at *3. Therefore, it
reasoned that a remand to the Township for consideration of a
Subdivision and Land Development Application and for a
building permit would frustrate the intent of the TCA. Id.
Accordingly, the court directed the Township to show cause
why an injunction should not be entered requiring the grant of
land development and subdivision approval and issuance of a
building permit. Id. After more briefing, on February 15, 2007,
the court ordered the Township to “issue all necessary approvals
15
and permits for the building of the 130 foot monopole radio
tower and related radio equipment in accordance with the
Application for Plan Examination and Building Permit of Sprint
Spectrum, L.P., dated August 31, 2006.”
The Township has filed an appeal from that order. That
appeal is No. 07-1694. On March 9, 2007, at our direction, the
Clerk consolidated the Township’s appeals for purposes of
scheduling and disposition. Each appeal is discussed
separately below.
III. THE TELECOMMUNICATIONS ACT OF 1996
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 Pittsburgh Ltd. P’ship v. Penn Twp., 196
F.3d 469, 473 (3d Cir. 1999) (quoting H.R. Rep. No. 104-458
(1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 10, 1124).
16
In order to achieve that goal without interfering with the
traditional right of local governments to regulate land use,
“Section 322(c)(7) of the TCA expressly preserves the
traditional authority enjoyed by state and local government to
regulate land use and zoning, but places several substantive and
procedural limits upon that authority when it is exercised in
relation to personal wireless service facilities.” Id.
The cellular siting subsection of the TCA provides as
follows:
(7) Preservation of local zoning authority.
(A) General authority. Except as provided in this
paragraph, nothing in this Act shall limit or affect
the authority of a State or local government or
instrumentality thereof over decisions regarding
the placement, construction, and modification of
personal wireless service facilities.
(B) Limitations.
(i) The regulation of the placement, construction,
and modification of personal wireless service
facilities by any State or local government or
instrumentality thereof --
(I) shall not unreasonably discriminate among
providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of
prohibiting the provision of personal wireless
services.
17
(ii) A State or local government or
instrumentality thereof shall act on any request
for authorization to place, construct, or modify
personal wireless service facilities within a
reasonable period of time after the request is duly
filed with such government or instrumentality,
taking into account the nature and scope of such
request.
(iii) Any decision by a State or local government
or instrumentality thereof to deny a request to
place, construct, or modify personal wireless
service facilities shall be in writing and supported
by substantial evidence contained in a written
record.
(iv) No State or local government or
instrumentality thereof may regulate the
placement, construction, and modification of
personal wireless service facilities on the basis of
the environmental effects of radio frequency
emissions to the extent that such facilities comply
with the Commission’s regulations concerning
such emissions.
(v) Any person adversely affected by any final
action or failure to act by a State or local
government or any instrumentality thereof that is
inconsistent with this subparagraph may, within
30 days after such action or failure to act,
commence an action in any court of competent
jurisdiction. The court shall hear and decide
such action on an expedited basis. Any person
adversely affected by an act or failure to act by a
State or local government or any instrumentality
thereof that in inconsistent with clause (iv) may
petition the Commission for relief.
18
47 U.S.C. § 332(c)(7).
“Traditionally, the federal courts have taken an extremely
deferential stance in reviewing local zoning decisions, limiting
the scope of inquiry to the constitutionality of the zoning
decision under a standard of rational review.” Cellular Tel. Co.
v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir. 1999) (citing
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981)).
However, the TCA altered that traditional deference in very
important ways insofar as local decisions interfere with, or
impact upon, telecommunications facilities. Thus, “[a]lthough
Congress explicitly preserved local zoning authority in all other
respects over the siting of wireless facilities, § 332(c)(7)(A), the
method by which siting decisions are made is now subject to
judicial oversight, § 332(c)(7)(B)(v).” Id. Moreover, “denials
subject to the TCA are reviewed by [the] court [of appeals]
more closely than standard local zoning decisions.” Id. With
this framework as our guide, we address the issues that arise
from the Township’s decisions here.
19
IV. THE TOWNSHIP’S APPEAL (No. 06-2297)
The Township’s appeal of the district court’s order
reversing the decision of the Zoning Board and granting
summary judgment to Ogden/Sprint is subject to plenary
review. See, e.g., Jensen v. Potter, 435 F.3d 444, 448 (3d Cir.
2006). We limit our review of the claim that the Zoning
Board’s rejection of the joint application was not supported by
“substantial evidence” to the record as it existed when the
zoning decision was made. See Nat’l Tower, LLC v. Plainville
Zoning Bd. of Appeals, 297 F.3d 14, 22 (1st Cir. 2002).
However, we review Ogden/Sprint’s claim of unreasonable
discrimination under the TCA on the record as supplemented in
the district court. See Nextel West Corp. v. Unity Twp., 282
F.3d 257, 266-67 (3d Cir. 2002).
A. Substantial Evidence
As noted previously, the TCA requires that a decision “to
deny a request to place, construct, or modify personal wireless
service facilities shall be in writing and supported by substantial
20
evidence contained in a written record.” 47 U.S.C. §
332(c)(7)(B)(iii). “Substantial evidence is a legal term of art.”
Omnipoint Commc’ns Enters, L.P. v. Zoning Hearing Bd. of
Easttown Twp., 248 F.3d 101, 106 (3d Cir. 2001). “It does not
mean a large or considerable amount of evidence, but rather
such evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citation and internal quotations
omitted). In reviewing a record for substantial evidence, we do
not “weigh the evidence contained in [the] record or substitute
[our] own conclusions for those of the fact finder, but rather
[we are] to determine whether there is substantial evidence in
the record as a whole to support the challenged decision.” Id.
(citation and internal quotations omitted). “[We] view[] the
record in its entirety and take[] account of evidence unfavorable
to the agency’s decision.” Omnipoint Corp. v. Zoning Hearing
Bd. of Pine Grove Twp. (“Pine Grove II”), 181 F.3d 403, 408
(3d Cir. 1999) (citation omitted). “The substantial evidence test
applies to findings made by a zoning hearing board under the
21
locality’s own zoning requirements.” Id.
The district court found that the Township’s denial of
Ogden/Sprint’s application was not supported by substantial
evidence on two distinct, but related grounds. The court granted
summary judgment to Ogden/Sprint because the Township
treated their joint application as the sole application of Sprint
for a stand-alone WCF tower, rather than as the joint
application of Ogden and Sprint to allow Ogden to erect a radio
tower for its own benefit, with Sprint thereafter attaching an
antenna by special exception. Ogden I, 2006 WL 851391 at
*12. The court also concluded that the denial of the special
exception was not supported by substantial evidence in the
written record. Id. at *19. The Township challenges both
findings.
(1). Joint Application of Ogden and Sprint versus Sole
Application by Sprint
The Zoning Board explained its insistence on treating the
zoning application as Sprint’s application rather than a joint
22
application filed by Ogden and Sprint as follows:
This appeal by Sprint is and can only be a request
for approval of a Wireless Communication
Facility, and not solely as a tower to improve the
radio signal of the fire company. There is no
doubt that the appeal is for a permit to erect a
WCF tower and to operate a WCF by a FCC
licensed provider of cellular telephone service.
The board cannot ignore that the appeal is by
Sprint Spectrum LP, and that the testimony
offered by Sprint on the record relates to a
cellular telephone service. Although there was
testimony that the fire company would be
permitted to place its radio transmission
equipment on the WCF, that does not convert this
application into anything other than a Wireless
Communication Facility for the transmission of
cellular telephone service. In fact, section 1814
5.E of the ordinance requires that local police,
fire, and ambulance companies be specifically
offered co-location on a WCF tower.
Joint Appendix (JA) at 553.
As the district court observes, this finding was fatal to
the zoning application because the zoning ordinance clearly
prohibits the siting of a stand-alone WCF tower in an R-1 or R-
2 Residential District. See Ogden I, 2006 WL 851391 at *11
(citing Zoning Ordinance §§ 203, 303.7, 803, 903, 1003, 1103).
23
In explaining its decision to ignore Ogden’s interest in
the application, the Township insisted, according to the district
court, that “no matter how cleverly . . . worded, the Application
is an application for Sprint to build a WCF as a stand-alone
tower on Ogden’s property, a use which is not permitted in an
R-2 Residential District under the Zoning Ordinance.” Id. at
*10. The district court disagreed. The court held that the
application “was submitted to the Zoning Board as a joint
application [by Ogden and Sprint] to build a radio tower for
Ogden as an accessory use to Ogden’s use of the property as a
firehouse and for Sprint to attach a WCF antenna to that tower.”
Id. at *10. The court explained:
[T]he Zoning Board’s decision to treat the
Application as an application brought solely by
Sprint for the siting of a stand-alone WCF tower
in an R-2 Residential District, rather than as a
joint application to erect a radio tower to benefit
Ogden, on which Sprint could attach an antenna
by special exception, is not supported by
substantial evidence in the written record. The
Court further finds that the Zoning Board’s
decision to ignore Ogden’s request to build the
tower on its property as an accessory use to the
24
firehouse is not supported by substantial evidence
in the written record.5
Id. at *12. Given Judge Padova’s thorough legal analysis, and
his meticulous review of the Zoning Board’s factual
5
Because the Zoning Board viewed the application as
filed by Sprint alone for Sprint to build a WCF as a stand-alone
WCF tower on Ogden’s property, the Board did not consider
that portion of the application in which Ogden sought to erect
the tower on its property as an accessory use to the permitted
fire company use. The Board wrote that it “specifically does
not render any opinion as to whether or not an antenna or tower
for transmission of radio signals to be used by a fire company
alone, is an accessory use or constitute [an] accessory
structure.” JA at 554.
Ogden/Sprint contend that in construing the application
as Sprint’s alone and in not deciding that the radio was an
accessory use to Ogden’s fire station, the Zoning Board failed
to decide the application as actually submitted and failed to
decide Ogden’s request at all. Accordingly, they argue that the
application as submitted is deemed approved under state law.
There is a considerable force to that argument. Under
Pennsylvania law, a zoning board “shall render a written
decision . . . on the application within 45 days after the last
hearing before the board . . . ,” but “where the board fails to
render a decision within the period required by this subsection
. . . , the decision shall be deemed to have been rendered in
favor of the applicant.” 53 PA. CONS. STAT. ANN. § 10908(9).
See Relosky v Sacco, 523 A.2d 1112 (1987). Nevertheless,
because these appeals raise important federal issues under the
TCA, we are reluctant to resolve this case on that basis, and we
will address the merits of the arguments that are raised by the
parties.
25
conclusions, we can best dispose of the Township’s challenge
to the district court’s order by quoting extensively from Judge
Padova’s Memorandum Opinion. In rejecting the Township’s
redefinition of the Ogden/Sprint application, the court
explained:
[The Township’s] position is belied by the
Application, which states plainly that it is an
application filed by Sprint and Ogden for a
“[s]teel monopole 130 feet in height for mounting
emergency service (fire company) and wireless
[t]elecommunications (PCS) antennas.” Indeed,
the background section of the Application states
that:
Ogden currently operates a radio system from its
property, but that radio system lacks adequate
coverage in parts of its service area. Installation
of a repeater radio on a tower of substantially
greater height will substantially improve its radio
communications and thus the safety and
efficiency of this [sic] volunteers. Ogden desires
to make this improvement. The proposed
monopole will meet this need.
Id. at *11.
The Township does not directly claim that the district
court’s finding of a joint application was clearly erroneous.
26
Rather, the Township relies upon certain provisions of the lease
agreement between Ogden and Sprint to support its contention
that the zoning application was solely Sprint’s application.6
Ogden/Sprint argue that the Township did not raise the issue of
their lease in the district court and that it is therefore waived.
See Delaware Nation v. Pennsylvania, 446 F.3d 410, 416 (3d
Cir. 2006) (“Absent exceptional circumstances, this Court will
not consider issues raised for the first time on appeal.”).
Assuming arguendo that the argument is not waived, it can
readily be rejected as meritless.
The Township’s reliance on the provisions of a lease
between the two applicants ignores the very nature of the
zoning application process. Zoning regulations govern the use
of the land. Frederick v. Zoning Hearing Bd. of Conewago
6
The Township refers to a lease agreement that was
offered as an exhibit at the zoning hearing, and certain
provisions of the lease which appear to give Sprint the sole
ownership of, and control over, the monopole tower as well as
any equipment attached to it. According to the Township, the
unilateral nature of the terms of that lease can only mean that
the zoning application was really for the sole benefit of Sprint.
27
Twp., 713 A.2d 139, 141 (Pa. Commw. Ct. 1998) (citation
omitted). “Zoning regulations concern the physical use to
which land is put. Zoning laws, enactments under the police
power, are not concerned with the method of ownership of
property. . . . [I]f a use is permitted, a municipality may not
regulate the manner of ownership of the legal estate.” Id.
(citation omitted). Accordingly, actual ownership of the
proposed tower is as irrelevant as the relationship between
Ogden and Sprint insofar as the zoning application is
concerned.
Moreover, the Zoning Board’s focus on the nature and
extent of Sprint’s involvement totally obfuscated the Zoning
Board’s inquiry and analysis. The question before the Zoning
Board was whether the proposed use of the radio tower would
be accessory to the firehouse; the issue was not the respective
rights of the applicants, nor the nature of the interest of each
under the terms of their lease. Accordingly, the district court
correctly rejected the Township’s effort to view the joint
28
application of Ogden and Sprint as the sole application of
Sprint.
(2). Substantial Evidence
Ogden/Sprint applied for two special exceptions for the
siting and construction of the radio tower. Pursuant to § 1706.2
of the zoning ordinance they sought a special exception to build
a tower higher than the height limitation for accessory
structures.7 They also sought a special exception pursuant to §
303.7 of the zoning ordinance to attach a WCF antenna to that
tower.8
A “special exception” in zoning law is “a conditionally
permitted use, allowed by the legislature if specifically listed
7
Zoning ordinance § 1706.2 provides that “[n]o
accessory structure shall be more than one (1) story or fifteen
(15) feet in height, except when a greater height is permitted by
special exception in the case of any accessory to a non-
residential use.”
8
Zoning ordinance § 303.7 allows a WCF “with Antenna
attached to a nonresidential building or structure of a permitted
. . . municipal or governmental building or facility, and a
building or structure owned by a public utility” in an R-2
Residential District as a use permitted by special exception.
29
standards are met.” In re Brickstone Realty Corp., 789 A.2d
333, 340 (Pa. Commw. Ct. 2001) (citation omitted). Thus, a
special exception is not really an exception at all. Rather, it is
“a use permitted conditionally, the application for which is to be
granted or denied by the zoning hearing board pursuant to
express standards and criteria.” Id. (citation omitted). “Where
a particular use is permitted . . . by special exception, it is
presumed that the local legislature has already considered that
such use satisfies local concerns for the general health, safety,
and welfare and that such use comports with the intent of the
zoning ordinance.” Id. (citation omitted).
Once an applicant for a special exception establishes it
has complied with the controlling ordinance, the applicant is
entitled to a presumption that the requested use “is consistent
with the promotion of health, safety, and general welfare.” Id.
(citation omitted). Accordingly, “[t]he burden then shifts to
objectors to prove that the proposed use is not, in fact,
consistent with the promotion of health, safety, and general
30
welfare.” Id. (citation omitted).
In order to receive approval pursuant to § 1706.2,
Ogden/Sprint had to satisfy the conditions for special exception
listed in § 1802 of the zoning ordinance. That section requires
the Zoning Board to consider, where appropriate, the following
factors in considering a request for a special exception:
a. That the proposed use is consistent with the
statement of community objections per Section
103 and the statement of purpose for the district
in which it is proposed.9
b. That the proposed use is appropriate for the
site in question in terms of size, topography,
natural features, [and] drainage, . . . .
c. That the proposed use is compatible with the
9
The statement of community objectives provided in §
103 state that this “Zoning Ordinance is intended to implement
the principles, policies and objectives of the Comprehensive
Plan and to guide and regulate the orderly growth and
development of Upper Chichester Township.” Zoning
Ordinance § 103. The statement of purpose for R-2 Residential
Districts provides that such districts “are to provide for
continued medium density suburban type, single-family
residential development; to preserve existing medium density
development and open space; and to provide for and regulate
certain uses permitted [by] special exception.” Zoning
Ordinance § 301.
31
character of the surrounding neighborhood, will
not interfere with or detract from legitimate uses
and adjacent properties, and that adequate
measures will be provided through . . . site layout,
landscaping, [and] planting . . . to minimize any
adverse impacts caused by noise, lights, glare,
odors, smoke, fumes, traffic, parking, loading and
signage.
d. That the proposed use will serve the best
interest of the Township, convenience of the
community and the public health, safety and
welfare.
e. That the proposed use is consistent with the
Township Comprehensive Plan.
f. That the proposed use promotes orderly
development, proper population density and the
provision of adequate community facilities and
services, including police and fire protection.
Zoning Ordinance § 1802.1
In order to receive permission to attach Sprint’s WCF
antenna to the tower as a special exception pursuant to § 303.7,
Ogden/Sprint had to satisfy the relevant conditions contained in
§ 1814 of the zoning ordinance. That section required the
following:
A. The applicant shall demonstrate, using
32
accepted technological evidence, that the
Antenna and Antenna Support Structure must be
located where proposed in order to satisfy its
function in the applicant’s grid system.
B. If the applicant proposes to build a Tower (as
opposed to mounting the Antenna on an existing
tall structure), it is required to demonstrate that it
contacted the owners of tall structures within a
one-mile radius of the site proposed, requested
permission to install the Antenna on those tall
structures and was denied permission for reasons
other than economic reasons. . . . If the Antenna
can be physically and legally accommodated on
an existing tall structure, the Township may deny
the application to construct a new Tower.
C. The applicant shall demonstrate that the
Antenna Height is the minimum required to
function satisfactorily. . . .
D. The applicant shall demonstrate that the
proposed Antenna and Antenna Support Structure
are safe and the surrounding properties will not
be negatively affected by Antenna Support
Structure failure, falling ice or other debris. . . .
E. [T]he proposed Antenna Support Structure
shall be required to accommodate, where
possible, other users including . . . local police,
fire and ambulance companies. . . .
F. The applicant must demonstrate that it is
licensed by the Federal Communication
Commission (FCC) to provide wireless
33
communications. . . .
G. As the wireless communications facility is
fully automated, adequate parking shall be
required for maintenance workers.
H. Antenna Support Structures shall, to the
extent possible, be finished so as to reduce the
visual impact. . . .
I. A full site plan shall be required for all
Landsites. . . .
J. A plan shall be required for all WCF . . . to
illustrate the relationship between the proposed
facility and the adjacent structures and property
lines.
K. Towers shall be designed and constructed to
all applicable standards of the American National
Standards Institute. . . .
L. A soil report . . . shall be submitted to the
Township. . . .
M. Towers and Antenna shall be designed to
withstand wind gusts of at least 100 miles per
hour.
N. An Antenna may not be located on a building
or structure that is listed on the Township’s
Historic Resources Map.
O. No Antenna or its support structure may be
artificially lighted except when required by the
34
Federal Aviation Agency.
P. Applicant shall maintain with the Township
the current name, address and emergency
telephone number of the owner or operator. . . .
Zoning Ordinance § 1814.5.
During the hearing before the Zoning Board,
Ogden/Sprint presented the testimony of a civil engineer, James
Rudolph, and submitted a plan showing the relationship
between the proposed tower and the adjacent structures and
property lines. The plan also showed the vegetation on Ogden’s
property, including existing stands of mature trees, which,
according to Rudolph, would act as buffers. Rudolph testified
that the tower and antenna would be designed by a licensed
professional engineer consistent with all applicable codes.
Rudolph also stated that the completed tower would withstand
wind gusts of up to 100 miles per hour, not pose any safety
concerns, provide for adequate storm water management,
comply with landscaping and soil requirements, and would not
affect the use of adjacent properties. Furthermore, the tower
35
and necessary communications equipment would not affect
traffic conditions or generate noise and would be unlighted
except for a work light that could be turned on when needed,
and that there was already adequate parking at the site for
maintenance personnel. The distance from the radio tower to
each of the neighboring properties would be greater than the
tower’s height, preventing damage to neighboring properties
caused by the tower’s falling or dropping ice and that there
would be a multi-agency 911 cabinet for Upper Chichester. He
testified that Ogden/Sprint would install additional trees to add
to the existing buffer along Ogden’s property lines and that the
proposed tower would not alter the essential character or
essence of the surrounding neighborhood.
Ogden/Sprint also submitted the expert report of Dr. Ken
Foster, an expert on the health effects of radio frequencies. He
opined that the tower and communications facility would
comply with all applicable FCC standards regarding
electromagnetic radiation. In addition, Clement Poole, a radio
36
frequency engineer, testified about studies he performed
regarding Sprint’s weak wireless communications service in the
area of Naamans’s Creek Road, where the Ogden firehouse is
located. These studies included testing PCS coverage at nearby
tall towers to see if Sprint could solve its service problems by
attaching an antenna to an existing tower. He determined that
the Ogden location was the best one. He also concluded that if
Sprint were not permitted to attach an antenna to the proposed
tower, Sprint would have poor to no service in that area, and
that the proposed tower was the minimum required to alleviate
Sprint’s coverage problems.
William T. Robinson, former Township Police Chief and
Vice President of Ogden, testified that the facility would benefit
the public health, safety and welfare by enhancing
communications between the fire company, the Township,
School District and community.
As the district court observed, “[d]espite the evidence
presented by [Ogden/Sprint] in support of their Application,
37
which satisfies the relevant requirements of §§ 1802 and 1814
of the Zoning Ordinance, the Zoning Board found that the
proposed tower did not satisfy these factors.” Ogden I, 2006
WL 851391 at *16. The Zoning Board concluded:
(1) That the proposed use is not consistent with
the statement of community objectives per
Section 103 and the statement of purpose for the
district in which the use is proposed.
(2) That the proposed use is not appropriate for
the site in question in terms of size, topography,
natural features, and that adequate provisions
were not provided to protect sensitive
environmental features.
(3) That the proposed use is not compatible with
the character of the surrounding neighborhood,
will interfere with or detract from legitimate uses
and adjacent properties.
(4) That the proposed use will not serve the best
interest of the Township, convenience of the
community and the public health, safety and
welfare.
(5) That the proposed use is not consistent with
the Township Comprehensive Plan.
(6) That the proposed use will not reflect
effective site planning and design in terms of
energy efficiency, environmental protection and
38
aesthetic composition.
The Zoning Board based these conclusions on the
following findings of fact:
1. That Appellant proposes to erect a 133 foot
stand alone WCF tower for transmission and/or
reception of Wireless Communication Services as
defined in the Ordinance and that the tower will
accommodate the needs of Ogden Fire Company
with respect to enhancing the Fire Company’s
radio signal.
2. That the principal use of the proposed tower is
to operate as a WCF Antenna.
3. That Appellant is located in an R-2, Medium
Density Residential District.
4. That the Appellant, the Ogden Fire Company
[,] is an existing non-conforming use pursuant to
the ordinance.
5. That a single 133 foot tower is not the only
means by which Appellant could ameliorate or
correct its alleged lack of adequate service in the
area around the Ogden Fire Company.
6. That there exist other solutions to help
ameliorate the alleged lack of service other than
to erect a single 133 foot stand along WCF tower
at Appellant’s location.
7. That there is adequate wireless communication
39
service in the area around Ogden Fire Company
provided by other providers of Wireless
Communication Services.
8. That Appellant did not propose a WCF
antenna to be “attached to a nonresidential
building or a structure of a permitted church,
educational, public, municipal or governmental
building or facility, and a building or structure
owned by a public utility regulated by the
Pennsylvania Utility Commission” which is
permitted as a Special Exception in an R-2
Residential District.
9. That Appellant did not produce evidence from
the owners of other structures and tall structures
in the area around Ogden Fire Company refusing
to allow Appellant to attach an antenna to their
existing structures and tall structures.
10. That a 133 foot stand alone tower will
adversely affect the property values of the
immediately adjacent residential properties.
The district court properly rejected most of the Board’s
findings out of hand. The court ruled that Findings of Fact 1,
2 and 8 were based on the Zoning Board’s mischaracterization
of the application as solely Sprint’s request to build a stand-
alone tower. Those three findings were irrelevant to whether
Ogden/Sprint’s joint application satisfied the requirements for
40
special exceptions contained in zoning ordinance §§ 1802 and
1814. Id. at *17. Similarly, Finding of Fact 9 concerns a
condition that must be met only if the applicant wants to build
a stand-alone WCF tower. Thus, the district court also
considered Finding of Fact 9 irrelevant to the issue of whether
the application met the requirements for the special exceptions
actually requested. Id. The court concluded that Finding of
Fact 3 (the application involved an R-2, Medium Density
Residential District) was correct. Id. Indeed, this was not
contested. However, the court then noted that Finding of Fact
7 (adequate wireless communication service in the area of
Ogden’s property provided by other wireless providers) was not
at all responsive to any of the conditions for special exceptions
listed in §§ 1802 and 1814. Id. That finding was, therefore,
irrelevant to whether the application met the requirements for
the requested special exceptions. Id. The court concluded that
Finding of Fact 4 was incorrect because the Zoning Board had
granted Ogden a special exception to locate a firehouse on its
41
property as a public use on June 19, 1969, under § 303.1 of the
Zoning Ordinance. Id.
The district court explained that the only evidence
supporting Findings of Fact 5 and 6 (a single 133 foot tower is
not the only means by which Sprint could correct its service
problems and there are other solutions for those service
problems) was the evidence submitted by Karen Beck, an
objector who appeared before the Zoning Board. Id. She
testified that Sprint could solve its service problems by
attaching an antenna to another tall structure in the area or by
placing a tower somewhere else, but she conceded that she was
not an expert in telecommunications. Id. Despite her lack of
expertise, she testified about a tower in a neighboring township
purportedly having a height of 420 feet; 90 feet higher that the
proposed Sprint tower. Id. Beck also submitted pictures of
some of these structures. She claimed that there was no need
for the tower described in the Ogden/Sprint application. Id.
The district court was not convinced by Beck’s testimony
42
because there was “no evidence that any of the areas [Beck]
identified . . . [are] located within one mile of the Ogden
firehouse, the location where Sprint claims it needs to put a
WCF antenna in order to close its gaps in service.” Id.
Accordingly, it found that Findings of Fact 5 and 6 are not
supported by substantial evidence. Id.
The district court held that Finding of Fact 10 (a 133 foot
stand-alone tower will adversely affect the property values of
the immediately adjacent residential properties) was supported
only by testimony that the proposed project would lower
property values of some of the neighbors. Id. at *18. That
testimony was also offered by objectors who testified before the
Zoning Board. Arthur Sokolove, a spokesman for others living
near the firehouse, testified about the neighbors’ concerns that
they will be unable to sell their homes if the tower is built.
Sokolove testified that he would not have bought his house if
the proposed tower had been on Ogden’s property. Id. Another
objector, Linda McDonald, testified about her internet research
43
into property values. Her research disclosed that houses in New
York that were near towers sold for ten to twenty-five percent
less than houses that were not. Id. McDonald also testified that
she spoke with real estate agents and learned that houses near
towers take longer to sell and will sell for less when finally sold.
Id. The district court was not convinced by McDonald’s
testimony because she never identified the source of her internet
research, nor the agents to whom she spoke. Regina Hartney,
who does not live near the Ogden property, but who once
worked as a realtor, testified that the vast majority of people
would not choose to buy a home with a 100 foot tower in their
backyard if they have a choice. Id. On appeal, the Township
reasserts the value of Hartney’s testimony by describing her as
“not paid by any party, but an aggrieved party, [who] was
qualified to give an opinion on the question as to whether a 130
foot monopole erected on the property adjacent to the homes in
the neighborhood would negatively impact the value of these
homes.” Township’s Br. at 25. However, the district court
44
noted that Hartney did not take a poll or perform an actual study
of the impact of a radio tower on the price of nearby homes. Id.
Indeed, she explicitly admitted: “I’m not trying to tell you that
I have documented data. Joint Appendix at 342, ZHB Hearing
at 318-20.
Given the district court’s rejection of the Zoning Board’s
findings, the court held that the Board’s denial of the
application was not supported by substantial evidence in the
written record. Id. at *19. The Township contends that this
was error and it advances a number of arguments in support of
that contention. First, the Township argues that the district
court improperly substituted its judgment for that of the Zoning
Board in crediting Rudolph’s testimony “that the proposed
tower would not alter the essential character or essence of the
neighborhood.” Id. at *15. According to the Township, since
the Zoning Board rejected Rudolph’s testimony on this point,
the court could not find that he was credible. However, the
Township’s argument misconstrues what the district court did.
45
It did not find Rudolph’s testimony credible. Rather, it simply
reiterated his testimony. As Ogden/Sprint note, the issue is not
whether the district court accepted his testimony despite the
Zoning Board’s rejection of it. The issue is whether there was
evidence to refute his testimony, and the Township points to
nothing in the record to refute it on this point. The Township
simply says that “it defies common sense to conclude that a one
hundred thirty (130) foot monopole erected adjacent to homes
in one particular neighborhood would not ‘alter the essential
character or essence of the neighborhood.’” Township’s Br. at
24. However, that simplistic approach does not sufficiently
consider the impact of the existing fire station.
As noted, the Township granted a special exception to
Ogden for a “public use” for its fire station almost forty years
ago under § 303.1 of the Zoning Ordinance, and the Zoning
Ordinance allows for an accessory use. See n.1, supra. As also
noted, the Zoning Ordinance defines an “accessory use” as “[a]
use of land or of a building or portion thereof customarily
46
incidental and subordinate to the principal use of the land or
building and located on the same lot with such principal use.”
Zoning Ordinance, Appendix (i); see also n.2, supra. “Once
something is defined as an accessory use, it is allowed by right.”
AWACS, Inc. v. Zoning Hearing Bd. of Newtown Twp., 702
A.2d 604, 607 (Pa. Commw. Ct. 1997) (citation omitted). “In
order to establish that right, an applicant must prove that the use
sought is secondary to a principal use and that the use is usually
found with that principal use.” Id. (citation omitted). The
Zoning Ordinance also provides for, and allows, an “accessory
structure.” An “accessory structure” is defined as one that is
“detached from a principal building on the same lot and
incidental and subordinate to the principal use of the building
or use.” Zoning Ordinance, Appendix I.B.
Here, it is clear that the tower is an accessory
use/structure to Ogden’s firehouse. Robinson, Ogden’s Vice-
President, explained the relationship of the proposed tower to
the firehouse:
47
Communications are necessary so, essentially,
this is an accessory use. If you look at
communications, without it we are nowhere. We
look upon redundancy in this age, particularly
this age after 9/11, as critical to emergency
operations. As a result we have taken action with
regard to further alerting people through our cell
phones, regular pagers in addition to fire pagers
which we found to be inadequate in certain areas.
So communication is definitely associated with
any emergency service.10
App. 288. Accordingly, the district court quite correctly
concluded that Ogden’s use of “a radio tower to enhance its
existing radio-communications system would be an accessory
use. . . .” Ogden I, 2006 WL 851391 at *8.
The Township attempts to rely on AWACS, 702 A.2d
604, in arguing that the district court erred because the radio
tower is a commercial use that is not accessory to the firehouse
and therefore should not be allowed. In AWACS, a
telecommunications company (Comcast) applied for a building
permit to install 12 mobile phone antennae on the roof of an 18
10
As we noted earlier, there was evidence that the poor
quality of Ogden’s emergency communications capabilities has
contributed to two deaths in the past.
48
story apartment building. The application was denied as an
unpermitted use that was not accessory to any permitted use.
On appeal, the Commonwealth Court agreed stating:
[T]he principal use of the apartment building on
which the antennae were to be erected is, of
course, residential. The use to which Comcast
would put these antennae is a business use. The
antennae would serve Comcast’s customers in the
area, regardless of where they live, not Newtown
Towers residents alone. In fact, the antennae
would not necessarily serve any residents of the
building, unless they chose to become Comcast
subscribers. In this sense, the antennae are
unlike, for example, a television antenna on top
of an apartment building that serves the tenants of
that building as an incident to their residential
use. The antennae may be a necessary part of
Comcast’s business use, but they are in no
manner incident, subordinate or secondary to
Newtown Towers’ use, and may even lack a
connection at all, if no Comcast subscribers
reside there.
702 A.3d at 607. The Township now claims that the proposed
Ogden/Sprint tower “would not serve members of the fire
company unless they also subscribed to the available telephone
services,” and that it is therefore not a use that is incidental to
49
the fire house. Township’s Br. at 40. However, this argument
is once again tethered to the Board’s attempt to ignore the joint
nature of the Ogden/Sprint application and the Board’s
insistence on viewing it as an application of Sprint alone.
Given that analytical entry point, the Board concluded that
Sprint wanted to erect a stand-alone wireless communications
tower solely for its own use to provide service to its cellular
customers.11
It is, of course, true that Sprint’s antenna is intended to
provide service to Sprint’s customers rather than being part of
Ogden’s emergency communication system. However, that is
where the strained analogy to AWACS ends. It is abundantly
clear on this record that the radio tower will be used by Ogden
pursuant to its responsibility as an emergency responder. The
11
“‘It is true also of journeys in the law that the place
you reach depends on the direction you are taking. And so,
where one comes out on a case depends on where one goes in.’”
United States v. Sigal, 341 F.2d 837, 844 (3d Cir. 1965)
(quoting, United States v. Rabinowitz, 339 U.S. 56, 69 (1950)
(Frankfurter, J. dissenting)).
50
Zoning Ordinance allows for telecommunications uses in R-2
Residential Districts by special exception. See Zoning
Ordinance § 303.7. As we have already noted, once something
is defined as an accessory use, it is allowed by right. Because
the tower is an accessory use, on this record, Sprint can surely
attach an antenna to it by special exception.
While it is certainly conceivable that the proposed tower
could decrease property values, and that such a decrease would
qualify as reasonably detrimental to the neighborhood, that
conclusion is not supported by substantial evidence in this
record. The Township argues that it “should have been given
the deference to reject whatever unqualified expert testimony
was given to support the fantastic notion that [the monopole] .
. . would not impair aesthetics, the character of the
neighborhood, or negatively affect the desirability or value of
the property.” Township’s Br. at 26. The Township fails to
comprehend, however, that it is given deference in the form of
the substantial evidence standard, but the Township failed to
51
clear even this rather low hurdle; rather, it made conclusory
statements insufficiently buttressed by generalized notions
offered by poorly qualified witnesses.
Second, the Township contends that Regina Hartney’s
testimony constitutes substantial evidence supporting the
Zoning Board’s denial of the special exceptions. However, as
noted earlier, Regina Hartney, did not live near the Ogden
property, but once worked as a realtor. She testified that the
vast majority of people would not choose to buy a home with a
100 foot tower in their backyard if they had a choice. The
district court rejected her testimony and Finding of Fact 10 that
was based on it. The court explained:
Generalized concerns about aesthetics and
property values are not sufficient to satisfy the
objectors’ duty of presentation. The duty of
presentation requires [objectors] to establish their
objection with a ‘high degree of probability, and
raise specific issues concerning the proposal’s
general detrimental effect on the community.
Indeed, the evidence of objectors must show a
high probability of an adverse impact that will
pose a substantial threat to the health and safety
of the community. Mere speculation as to
52
possible harm is insufficient. (citations omitted).
The United States Court of Appeals for the Third
Circuit has recognized that [a] few generalized
concerns about a potential decrease in property
values, especially in light of [the plaintiff]’s
contradictory expert testimony, does not
constitute substantial evidence for the purposes of
§ 332(c)(7)(B)(iii) of the TCA.
Ogden I, 2006 WL 851391 at *18. (citations, quotation marks
and footnotes omitted) (brackets in original). Thus, the district
court dismissed the testimony because it amounted to nothing
more than generalized expressions about aesthetics and
decreases in property values that did not rise to the level of
substantial evidence required under the TCA. See Pine Grove
II, 181 F.3d at 409 (“[A] ‘few generalized expressions of
concerns with aesthetics cannot serve as substantial evidence’
and ‘a few generalized concerns about a potential decrease in
property values . . . does not seem adequate to support a
conclusion that the permits should be denied.’”) (quoting Oyster
Bay, 166 F.3d at 490).
The Township cites Omnipoint Commc’ns Enters., L.P.,
53
v. Zoning Hearing Bd. of Easttown Twp., 72 F. Supp. 2d 512,
515 (E.D. Pa. 1999), reversed, 248 F.3d 101 (3d Cir. 2001), in
arguing that zoning decisions linking aesthetics to property
values are acceptable and appropriate. The court there did say
that “decisions which link aesthetics to property values . . . are
acceptable.” However, the court’s analysis was driven by
traditional zoning considerations under Pennsylvania law. It
was not considering with the application of the TCA, nor that
federal statute’s impact on the considerations of land use that
are otherwise left to local regulation.12
The Township also cites to AT&T Wireless PCS, Inc. v.
Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307 (4th
Cir. 1999), in which a court of appeals reversed the district
court’s order granting AT&T’s application for a special use
12
One could forcefully argue that the erection of any
telecommunications equipment would have an adverse impact
on the aesthetics of any residential community. However, under
the circumstances here, such an unforgiving and absolutist
approach local to land use regulation would eviscerate the
national policy of promoting the telecommunications industry
that is endemic in the TCA.
54
permit to erect a 140 foot monopole despite the local zoning
authority’s rejection of that application. The substantial
evidence on the record supporting the denial there included a
mortgage banker’s testimony that the tower would adversely
affect the resale value of the homes surrounding it, and have a
negative impact on the aesthetics of the community where it
was planned. To that extent, it appears at first blush that the
Township’s focus on aesthetics does have some support in cases
applying the TCA. However, AT&T is easily distinguished.
In AT&T, the tower was to be erected on private property
that included a house that was listed on the National Register of
Historic Places, 172 F.3d at 310, and there was “no commercial
property in the neighborhood nor on the [subject] property.” Id.
Moreover, the setting was described as “a neighborhood of
‘excellent quality of life and . . tranquility[,]’” and “‘an
unspoiled serene tract of land in the midst of a bustling city.’”
Id. As the court noted, that testimony was offered “not by the
homeowners or others opposing the special use permit, but by
55
AT&T.” Id. There was more. Although AT&T argued that it
needed the tower to address a gap in its wireless service in the
city, it conceded that “this particular location was not necessary,
[and that] others would do.” Id. AT&T’s engineers admitted
that they could “co-locate on an existing tower, . . . [or] build
another monopole tower at another location;” and that either
option was satisfactory and would “preclude the necessity of
having a tower on [the subject] property” while “provid[ing] the
same level of service.” Id. at n1. That is simply not our case.
Given the circumstances here, the district court correctly
evaluated the generalized testimony regarding aesthetics, the
fact that the current use included a firehouse, and the need for
the specific location where Ogden/Sprint were attempting to
locate the communications tower.13
Third, the Township contends that the district court
13
We do not, of course, suggest that all testimony
regarding aesthetics is irrelevant under the TCA. We do,
however, reiterate that the generalized testimony about the
impact on the aesthetics of the neighborhood on this record is
not the “substantial evidence” required under the TCA.
56
misinterpreted and/or ignored testimony that clearly established
that Ogden’s property was not the only site that would remedy
Sprint’s problem. As noted, in Findings of Fact 5 and 6, the
Zoning Board found:
5. That a single 133 foot tower is not the only
means by which Appellant could ameliorate or
correct its alleged lack of adequate service in the
area around the Ogden Fire Company.
6. That there exist other solutions to help
ameliorate the alleged lack of service other than
to erect a single 133 foot stand along WCF tower
at Appellant’s location.
As we explained earlier, the district court held that the only
evidence supporting these findings was the testimony of Beck,
which we have recited above. The court found that testimony
insufficient to demonstrate that Sprint could solve its
communications problems by placing an antenna on another tall
structure or could build a tower elsewhere. The Township
claims that holding was in error. According to the Township,
the testimony of Poole, a radio frequency engineer who testified
for Sprint, demonstrated that Ogden’s property was not the only
57
site that could solve Sprint’s coverage problems. We disagree
with that summary of Poole’s testimony. Poole testified that
Sprint must have a tower on Ogden’s property to solve its
coverage problems even if it erected a tower somewhere else.
The district court summarized the relevant portions of Poole’s
testimony as follows:
Clement Poole . . testified regarding studies which
he performed regarding Sprint's weak wireless
telecommunications service in the area of
Naamans Creek Road where the Ogden firehouse
is located. These studies included testing PCS
coverage at nearby tall towers to see if Sprint
could solve its service problems by attaching an
antenna to an existing tower. (N.T. Vol. 2 at
150-68.). He determined that the Ogden location
was the best location. (Id. at 168.) Poole also
concluded that if Sprint were not permitted to
attach an antenna to the proposed tower, Sprint
would have poor to no service in that area. (Id. at
176.) He further testified that the proposed height
of Sprint's antenna on the proposed tower is the
minimum height necessary to alleviate Sprint's
coverage problems. (Id. at 177.)
Ogden I, at * 15.
Finally, the Township contends that Ogden/Sprint did
58
not produce any evidence in the application for a special
exception under Zoning Ordinance § 1706.2, see n.8, supra,
that the tower had to be 130 feet tall. In support of that claim,
the Township excerpts portions of the testimony of Ogden’s
Vice President Robinson. See Township’s Br. at 31. However,
the Township ignores Robinson’s testimony that 130 feet would
be less than the optimum height of 150 feet, but would be close
enough to fill Ogden’s needs. JA at 289. Moreover, the
Township completely ignores the fact that Poole stated that the
proposed height of 130 feet was the minimum height necessary
to fill Sprint’s coverage gap. JA at 313. Moreover, in its
submissions to the district court, the Township admitted that
Odgen’s “communications problems cannot be remedied
without the proposed Facility at the height requested.” JA at
50.19 (Township’s Motion for Summary Judgment, Facts
Established at the Hearings, ¶ 34).
Accordingly, we agree with the district court’s
conclusion that the Township’s rejection of the Ogden/Sprint
59
application is not supported by substantial evidence.
B. Did the Township Unreasonably Discriminate Among
Providers of Functionally Equivalent Services?
As noted at the outset, Count I of Ogden/Sprint’s
complaint alleged that the Township’s rejection of their
application unreasonably discriminated among providers of
functionally equivalent services in violation of 47 U.S.C. §
332(c)(7)(B)(i)(I). The Township had previously approved an
application filed jointly by Reliance Hook and Ladder Co. No.
1 and Metro Phone. It had also previously approved an
application to build a telecommunications tower in an R-1
District filed by AT&T Wireless. The district court granted
summary judgment to Ogden/Sprint on that claim, finding that
the “Zoning Board unreasonably discriminated between the
Ogden/Sprint Application and the prior applications. . .”.
Ogden I, 2006 WL 851391 at *9. We agree.
(1). General legal principles
“The TCA does not prohibit all discrimination against
60
providers, only unreasonable discrimination.” Omnipoint
Commc’ns Enters., L.P. v. Zoning Hearing Bd. of Easttown
Twp., 331 F.3d 386, 395 (3d Cir. 2003) (citation omitted).
Section 332(c)(7)(B)(i)(I) of the TCA provides: “The regulation
of the placement, construction, and modification of personal
wireless service facilities by any State or local government or
instrumentality thereof . . . shall not unreasonably discriminate
among providers of functionally equivalent services[.]” The test
for unreasonable discrimination under the TCA consists of two
prongs. Nextel West Corp., 282 F.3d at 266. “[T]he first prong
asks whether the relevant providers are ‘functionally
equivalent.’” Id. (quoting 47 U.S.C. § 332(c)(7)(B)(i). This
inquiry focuses on “the telecommunications services the entity
provides, not on the technical particularities (design,
technology, or frequency) of its operations. Id. at 267 n.13. If
the providers are “functionally equivalent,” the “second prong
asks whether the governmental body ‘unreasonably
discriminate[d] among providers.’” Id. at 267 (quoting 47
61
U.S.C. § 332(c)(7)(B)(i)).
Relief under the discrimination provision “will require
a showing that the other provider is similarly situated, i.e., that
the structure, placement or cumulative impact’ of the existing
facilities makes them as or more intrusive than the proposed
facility.” ATP Pittsburgh Ltd P’ship v. Penn Twp., 196 F.3d
469, 480 n.7 (1999). “Discrimination may be impermissible
where a municipality favors one provider by permitting it to
locate in a particular area at the exclusion of others, thereby
creating unfair competitive advantage.” Nextel West Corp., 282
F.3d at 267.
(2). The Reliance/Metro Phone application
On April 1, 1992, the Zoning Board approved the joint
application that Reliance Hook and Ladder Co. No. 1 and
AWACS, Inc., d/b/a Metro Phone Co., submitted for a special
exception. That application had obvious similarities to the one
Ogden/Sprint submitted. The exception the Board granted there
allowed Metro Phone to install and operate radio
62
communications equipment in the basement of Reliance’s
firehouse and to construct a 180 foot high radio
communications tower with antennae in the rear of the
firehouse. Like Ogden, Reliance is located in an R-2 Residential
District.
In granting the special exception, the Zoning Board
made the following findings: (1) this use was an accessory use
to the fire company use and the tower was an accessory
structure to the firehouse building, thus requiring special
exceptions to use and height limitations; (2) the tower and
radio communications equipment would facilitate Metro
Phone’s cellular communications system, which had a dead spot
in the area of the tower; (3) a tower with a minimum height of
180 feet was required to provide proper coverage to the service
area; (4) the base of the 180 foot tower would be 20 feet in
diameter, tapering to 48 inches at the top; and, (5) the proposed
tower would provide Reliance with a back-up communications
system and, therefore, benefit Reliance’s volunteer firefighting
63
activities and provide 911 service for Metro Phone’s
subscribers.
The Zoning Board also found that the cellular phone
communication service was an accessory use to the volunteer
fire company and that the tower was an accessory use to the
firehouse because the fire company had to depend on radio
communications. The proposed cellular phone communication
service provided a back-up communication for Reliance and
911 service to the cellular subscribers, and allowed the county
to place its emergency service equipment on the proposed
tower. Accordingly, the Zoning Board granted the special
exception to Reliance/Metro Phone pursuant to Zoning
Ordinance § 1706.2. The application was approved prior to the
Township’s adoption of Ordinance No. 579.14
14
On November 17, 1997, the Township adopted
Ordinance No. 579, which amended the Township Code to
provide for the use, construction and siting of WCFs.
Ordinance No. 579 amended § 303 of the Zoning Ordinance to
permit “WCF with antenna attached to a nonresidential building
or structure of a permitted church, educational, public,
municipal or governmental building or facility” as a special
64
In granting summary judgment to Ogden/Sprint on
Count I, the district court concluded that Ogden would use the
radio tower in its capacity as an emergency responder. That use
would enhance Ogden’s existing radio communications and it
was therefore an “accessory use not a commercial use as the
Township claimed.” Ogden I, 2006 WL 851391 at *8. The
Township argued that the differential treatment afforded
Reliance/Metro Phone and Ogden/Sprint was not unreasonable
because the Reliance/Metro Phone application was approved
before Ordinance No. 579. That argument is a non sequitur,
and the district court properly rejected it because Ordinance No.
579 regulates the use, construction and siting of a WCF tower.
The ordinance has nothing to do with deciding whether a radio
tower is an accessory use to a firehouse. Moreover, rather than
complicating Ogden/Sprint’s request for an accessory use,
exception in R-2 Residential Districts. Zoning Ordinance §
303.7. Ogden/Sprint sought a special exception because the 15
foot height limitation imposed under § 1706.2 would otherwise
have precluded erecting a 130 foot tower.
65
Ordinance No. 579 should have facilitated it. Thus, the
enactment of Ordinance No. 579 does not explain why the
Township rejected Ogden/Sprint’s application while approving
the application of Reliance/Metro Phone. Id. Here, the
Township repeats the argument that it made in the district court
about Ordinance No. 579. However, the argument is based on
the improper characterization of the application as one filed
solely by Sprint to construct a stand-alone WCF tower. The
district court’s holding that the Township could not rely upon
Ordinance No. 579 to justify the discrimination was correct.
The district court also rejected the Township’s attempt
to claim that the two applications were not functionally
equivalent because the proposed Ogden/Sprint tower would
have a greater impact on the surrounding community. The
Township argued that the area around the Reliance firehouse
when the Reliance/Metrophone application was approved was
very rural while the area around Ogden’s property is heavily
residential. The district court found to the contrary, noting:
66
[T]he aerial photographs submitted by the parties
do not support [the Township’s] contention that
the area around the Reliance firehouse was quite
rural in 1990. To the contrary, those photographs
show that the area around the Reliance firehouse
contained a school and a sizeable residential
community in 1990.
Id. The Township also repeats its reliance on the distinction
purportedly shown in the aerial photos here. However, our
review of those photographs is consistent with the findings of
the district court.
Accordingly, the district court correctly held that
Ogden/Sprint satisfied the first prong of the unreasonable
discrimination test by establishing that although Metro Phone,
like Sprint, is a provider of wireless communications services,
it was treated differently than Sprint.
The district court ruled that Ogden/Sprint satisfied the
second prong of the unreasonable discrimination test “by
demonstrating that the structure, placement or cumulative
impact of the existing Reliance/Metro Phone facility makes it
more intrusive than the proposed Ogden/Sprint tower.” Id.
67
The “Reliance/Metro Phone tower is both larger in diameter and
significantly taller than the proposed Ogden/Sprint tower and .
. . the neighborhoods are residential neighborhoods with
identical zoning.” Id.
On this record, the conclusion that the Zoning Board
unreasonably discriminated against the Ogden/Sprint
application compared to its earlier treatment of the
Reliance/Metro application is inescapable.
(3). The AT&T Wireless application
AT&T Wireless also provides wireless communication
services. On November 1, 2000, after Ordinance No. 579 was
adopted,15 the Zoning Board approved an application submitted
by AT&T Wireless. AT&T requested approval of a planned
180 foot monopole tower to be operated as a PCS cell tower
antenna on land owned by the Township in an R-1 Low Density
15
We stress the timing because of the Township’s
attempt to suggest that the enactment of Ordinance 579
somehow justifies the disparate treatment afforded the
Reliance/Metro application.
68
Residential District.
The Zoning Board approved AT&T’s application for a
stand-alone WCF after concluding that it was compatible with
the character of the surrounding neighborhood and in the best
interest of the Township, convenience of the community and the
public health, safety and welfare. The Zoning Board also
concluded that allowing this special exception would not
adversely affect the public health, safety and welfare and would
be in accordance with the Upper Chichester Comprehensive
Plan.
In granting summary judgment to Ogden/Sprint, the
district court observed that the Township had submitted no
evidence to justify denying Ogden/Sprint’s application while
approving AT&T’s application. Accordingly, the court held
that Ogden/Sprint met the first prong of the unreasonable
discrimination test by showing that it and AT&T are
functionally equivalent providers. Id. The court also held that
Ogden/Spring met the second prong of the unreasonable
69
discrimination test “with respect to the AT&T application by
demonstrating that the AT&T tower is more intrusive than the
proposed Ogden/Sprint tower because the AT&T tower is 47
feet higher than the proposed Ogden/Sprint tower.” Id.
Although there are some differences between the
placement of the two towers (the Ogden/Sprint in a R-2 zone,
and the AT&T in a R-1 zone), since the AT&T pole is much
higher than the proposed Ogden/Sprint pole, and given the
Zoning Board’s complete failure to explain why it was willing
to ignore Ordinance 579 when granting AT&T approval, the
approval of the AT&T application further supports
Ogden/Sprint’s claim of unreasonable discrimination.
V. TOWNSHIP’S APPEAL NO. 07-1694
As recited at the outset, after the district court granted
summary judgment to Ogden and Sprint on their claims under
the TCA, the Zoning Board granted the special exceptions
Ogden and Sprint were requesting. However, the Township’s
building inspector thereafter refused to give Ogden/Sprint the
70
building permit that was purportedly required before they could
construct the monopole. The denial was based upon the
building inspector’s determination that the lease of the relevant
portion of Ogden’s rear yard to Sprint for construction of the
tower constituted a division or allocation of land by means of a
leasehold. That, in turn, purportedly required the approval of a
Subdivision and Land Development Application pursuant to the
Township’s Subdivision and Land Development Ordinance and
Section 107(a) of the Pennsylvania Municipalities Planning
Code (“MPC”).
Apparently not feeling particularly upbeat about again
trying to survive this administrative gauntlet or their chances of
getting past the building inspector, Ogden/Sprint returned to
district court rather than attempt to negotiate the bureaucratic
rapids cascading between the Zoning Board and the final
completion of the project. They asked the court to compel the
issuance of a building permit. Since nothing in the record
supported the Township’s denial of a Subdivision and Land
71
Development Application or the issuance of a building permit,
the district court ordered the Township to issue the appropriate
permits for the building of the radio tower and related radio
equipment, and the Township appealed.
A. DISCUSSION
The Township’s first argument is that the district court’s
order compelling it to issue all necessary approvals and permits
for the building of the tower, impermissibly expanded the scope
of its March 30, 2006 order granting summary judgment to
Ogden/Sprint and ordering the Township to issue zoning
permits for the tower. As we understand the Township’s
argument, the Township is claiming that although the TCA
places limits on a local governmental unit’s zoning authority,
(i.e., its authority to regulate use of land), the TCA has nothing
to do with a local governmental unit’s subdivision authority,
i.e., its authority to regulate land development. Accordingly,
the Township argues that the district court improperly intruded
into an area that is strictly a matter of local law in ordering
72
building permits for the tower. Thus, the Township claims that
Ogden/Sprint must submit an application for subdivision/land
development approval before it can go forward with its project
even if the district court was correct in ordering the Township
to issue the zoning approvals.
The argument is unavailing. It would allow an end run
around the requirements of the TCA and thereby allow local
regulatory agencies to subvert a federal policy by elevating
zoning authority over congressional policy as enacted into law
via the TCA. In City of Rancho Palos Verdes v. Abrams, 544
U.S. 113 (2005), the Supreme Court explained that
Congress enacted the Telecommunications Act of
1996 (TCA), to promote competition and higher
quality in American telecommunications services
and to “encourage the rapid deployment of new
telecommunications technologies.” One of the
means by which it sought to accomplish these
goals was reduction of the impediments imposed
by local governments upon the installation of
facilities for wireless communications, such as
antenna towers. To this end, the TCA amended
the Communications Act of 1934, to include §
332(c)(7), which imposes specific limitations on
the traditional authority of state and local
73
governments to regulate the location,
construction, and modification of such facilities.
Id. at 115-16 (citations omitted). The Township’s position, if
sustained, would be fatal to telecommunication carriers
attempting to build facilities in localities that did not want to
allow it. It would merely shift the battle from the zoning agency
to another agency charged with subdivision approval whenever
the relationship between the carrier and the owner of the
affected land could be viewed as falling under the jurisdiction
of the latter agency. It would then remove the reach and
protection of the TCA from the telecommunications provider
and place the provider at the mercy of local regulators. Even if
the local jurisdiction ultimately granted approval, the attendant
delay, expense and uncertainty could adversely impact the
provider’s attempt to construct telecommunications facilities
and subvert the national policy favoring it.16
16
We note that the TCA expressly commands that any
court hearing an action filed by a person adversely affected by
a decision of a state or local governmental agency that is
inconsistent with the TCA is to “hear and decide such action on
74
Indeed, the Township here is not arguing that
Ogden/Sprint would not or should not ultimately obtain
subdivision approval. Rather, the Township appears simply to
want Ogden/Sprint to jump through the prescribed hurdles on
its way to ultimate approval. However, as Ogden/Sprint note,
it would be a pointless exercise to submit a subdivision
application now because the district court has already
determined, as a matter of federal law, that the Township must
permit the tower to be built on Ogden’s property. We conclude
that the court properly ordered the issuance of the building
permits as a supplemental remedy to the Township’s violation
of the TCA. See Omnipoint Corp. v. Zoning Hearing Board of
Pine Grove Township, 20 F. Supp. 2d 875 (E.D. Pa. 1998)
(“Pine Grove I”), aff’d 181 F.3d 403 (“Pine Grove II”).17
an expedited basis.” 47 U.S.C. § 332(c)(7)(B)(v). Congress
has thus recognized the need to avoid costly and unnecessary
delays during the approval process before local agencies.
17
In Pine Grove I, the district court found the zoning
board’s denial of a special exception for a wireless
communications facility was in violation of the TCA. It
75
The Township also argues that because subdivision
issues are matters solely of state law, we must abstain pursuant
to Burford v. Sun Oil Co., 319 U.S. 315 (1943).18 This
argument borders on frivolity and requires only the briefest
discussion. “Burford abstention is appropriate where a difficult
question of state law is presented which involves important
state policies or administrative concerns.” Heritage Farms, Inc.
v. Solebury Twp, 671 F.2d 743, 746 (3d Cir. 1982) (citation
omitted). However, there is no difficult question of state law
here. Rather, the controlling issue is one of federal law. The
issue is whether the denial of the building permits violates the
TCA. We agree with the district court’s conclusion that it does.
considered remanding for further administrative proceedings,
but concluded that doing so “would frustrate the TCA’s intent
to provide aggrieved parties full relief on an expedited basis.”
20 F. Supp. 2d at 881. Accordingly, it ordered the following
relief: “The Zoning Officer of Pine Grove Township is hereby
ORDERED to issue all necessary zoning and building permits
upon payment of any outstanding fees.” Id. at 882 (emphasis
added). We affirmed. 181 F.3d at 410.
18
The Township did not ask the district court to abstain
under Burford.
76
One matter remains. As recited, the district court noted
that, under Pennsylvania law, leases that allocate land, as
opposed to assigning positions on a pole or tower, constitute a
subdivision or allocation of land in accordance with § 107(a) of
the MPC. Ogden II, 2007 WL 137848 at *2 (citing Upper
Southampton Twp. v. Upper Southampton Twp. Zoning
Hearing Bd., 885 A.2d 85, 92 (Pa. Commw. Ct. 2005), appeal
granted, 895 A.2d 1265 (Pa. 2006)). Ogden/Sprint contend that
it is not all that clear that Pennsylvania law would require
subdivision approval even in the absence of the TCA. They
argue that since the Pennsylvania Supreme Court has granted
leave to appeal the decision in Upper Southampton, there is not
yet a definitive ruling on that issue under Pennsylvania law.19
19
Ogden/Sprint also distinguish Upper Southampton by
stressing that the Commonwealth Court was there concerned
with interests in a billboard. They suggest the rationale would
not apply here because (1) Ogden will occupy both the
firehouse and the tower, and (2) the tower is an accessory use to
the firehouse, not a separate business use. See Ogden/Sprint
Supplemental Br. at 11 (citing 885 A.2d at 88).
77
However, we need not resolve that issue because our inquiry is
limited to whether the district court’s order requiring the
Township to issue building permits for the tower is appropriate
supplemental and additional relief under federal law for a
violation of the TCA. We hold that it is.
VI. CONCLUSION
For all of the above reasons, the district court’s order of
March 30, 2006, ordering the Township to issue all required
zoning permits and variances, and the order of February 15,
2007, ordering the issuance of any required Building Permits
will be affirmed.
78