Jeffrey Depolo v. Tredyffrin Township Board of S

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2495
_____________
JEFFREY DePolo,
Appellant
v.
BOARD OF SUPERVISORS TREDYFFRIN
TOWNSHIP; MICHAEL C. HEABERG; KRISTEN
K. MAYOCK; PAUL OLSON; EVELYN RICHTER;
JOHN P. DIBUONAVENTURO; MARK FREED;
MURPH WYSOCKI, In their capacities as members
of the Board of Supervisors of Tredyffrin Township;
TREDYFFRIN TOWNSHIP ZONING HEARING
BOARD OF APPEALS; ARNOLD BORISH;
DANIEL MCLAUGHLIN; NEILL KLING, in their
capacities as members of the Zoning Heard Board of
Appeals of Tredyffrin Township
SCHUYLKILL TOWNSHIP; PAUL ADACK;
PATRICIA ADACK; MARK SAMUELS;
KIMBERLY SAMUELS; GEORGE RANDOLPH;
SUZANNE RANDOLPH
(Intervenors in D.C.)
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil Action No. 2-14-cv-06689)
District Judge: Stewart Dalzell
________________
Argued January 12, 2016
Before: McKEE, Chief Judge, AMBRO, and SCIRICA,
Circuit Judges
(Opinion filed: August 30, 2016)
Robert B. Famiglio, Esq.
Famiglio & Associates
P.O. Box 1999
Media, PA 19063
Fred Hopengarten, Esq. (ARGUED)
6 Willarch Road
Lincoln, MA 01773
Counsel for Appellant
Maureen M. McBride, Esq. (ARGUED)
Lamb McErlane
24 East Market Street
P.O. Box 565
West Chester, PA 19381
Counsel for Appellee Tredyffrin Township
Board of Supervisors, et al
Stacey L. Fuller, Esq.
John Larkin, Esq. (ARGUED)
Gawthrop Greenwood
17 East Gay Street
Suite 100
West Chester, PA 19381
Counsel for Appellee Tredyffrin Township Zoning
Hearing Board of Appeals, et al
Patricia Adack [Pro Se]
Paul Adack [Pro Se]
1235 Horseshoe Trail
Phoenixville, PA 19460
Suzanne Randolph[Pro Se]
1245 Horseshoe Trail
Valley Forge, PA 19481
2
Kimberly Samuels [Pro Se]
Mark Samuels [Pro Se]
1255 Horseshoe Trail
Phoenixville, PA 19460
George B. Randolph, III, Esq. [Pro Se]
Riley Riper Hollin & Colagreco
717 Constitution Drive
Eagleview Corporate Center, P.O. Box 1265
Exton, PA 19341
William J. Brennan, Esq.
Butera Beausang Cohen & Brennan
630 Freedom Business Center
Suite 212
King of Prussia, PA 19406
Counsel for Intervenor Township of Schuylkill
Christopher D. Imlay, Esq.
Booth Freret & Imlay
14356 Cape May Road
Silver Spring, MD 20904
Counsel Amicus Appellant, American Radio Relay
League, Inc.
________________
OPINION OF THE COURT
________________
McKEE, Chief Judge
This appeal arises from a land use dispute between
Jeffrey DePolo, a federally licensed amateur or “ham” radio
enthusiast, and the Township of Tredyffrin (“Township”).
DePolo attempted to have the Township’s Zoning Hearing
Board of Appeals (“ZHBA”) approve a 180-foot radio
antenna tower on his property so that he could communicate
with other ham radio operators around the world. The
property is surrounded by mountains or hills, and he claimed
a shorter tower would not allow him to reliably communicate
3
with other ham radio operators. The ZHBA denied
permission for a 180-foot tower, but agreed to a tower that
was 65-feet tall. The ZHBA viewed that intermediate height
as a reasonable accommodation under the applicable zoning
ordinance.
DePolo did not appeal that decision to the Chester
Court of Common Pleas as is allowed under state law.
Instead, he filed this suit in the U.S. District Court for the
Eastern District of Pennsylvania. He claims that the
Township’s zoning ordinance, which prohibited any building
taller than 35-feet, is preempted as enacted and as applied
under the applicable federal regulation, 47 C.F.R. § 97.15(b),
and the closely related FCC declaratory ruling, known as
PRB-1. The District Court granted motions to dismiss by the
Township’s Board of Supervisors (“BOS”) and the ZHBA
based upon its conclusion that the 65-foot variance offered by
the ZHBA was a reasonable accommodation. The District
Court also concluded that the Township’s zoning ordinance
was not preempted by PRB-1.
For the reasons that follow, we conclude that DePolo’s
failure to appeal the ZHBA’s determination to state court
rendered the decision final and that, given the unique
procedural history of this case, we must afford the ZHBA’s
final judgment the same preclusive effect that it would have
had in state court. It is therefore not reviewable in this suit.
I.
This dispute results from the frequent tension arising
from local land use regulations. Local municipalities enact
zoning ordinances to ensure the health, safety and general
welfare of those residing within the municipality by
regulating activities within the municipality. This typically
involves creating various districts within the municipality and
then regulating the use of the land and building type within
those districts.1 The land use regulations also usually provide
1
For a comprehensive background and explanation of local
land use law and zoning, see Gerald S. Dickinson,
Inclusionary Eminent Domain, 45 LOY. U. CHI. L.J. 854-55
(2014) (explaining that “[a]s land was acquired and
4
that one or more administrative agencies of the local
municipality are the appropriate forum for resolving disputes
arising from these regulations. Accordingly, local
governments are usually responsible for establishing
mechanisms and processes to reconcile the competing
interests of landowners and their neighbors. This is typically
done through zoning ordinances, which are administered by a
zoning officer and enforced by a quasi-judicial state
administrative agency known as a zoning hearing board.2
Amateur radio operators, or “hams,” often find that
zoning ordinances inhibit the use of their own land by
limiting the size of permitted radio towers to an extent that
precludes all (or nearly all) amateur communications. Hams
have an interest in maintaining successful amateur
communications and in sustaining a strong network of radio
amateurs. Concomitantly, the towers that are necessary for
reliable radio communication may impede the scenic view of
neighbors, pedestrians or drivers. Moreover, concerns that
such towers could fall onto nearby residences could
theoretically decrease property values.
However, disputes such as the one at the center of this
appeal affect more than local interests because the federal
government also has an interest in preserving amateur radio
communications. Hams who broadcast using these towers
afford the federal government reliable emergency
preparedness, national security, and disaster relief
communications. Therefore, federal interests are furthered
when local land use regulations do not unduly restrict the
construction of these towers. The result is a “perfect storm”
redeveloped in the suburbs, local officials and zoning boards
made decisions to regulate and control the land density in
accordance with desired local health, safety and welfare
standards…The land could be zoned for purposes of single-
family or multi-family residential housing, commercial
property or light industrial.”).
2
Robert S. Ryan, Pennsylvania Zoning Law and Practice, §
1.2.2. (noting that the zoning hearing board reviews appeals
from the municipal zoning officer’s denial of permits, hears
requests for special exceptions and variances, and may
declare a zoning provision invalid).
5
for conflict because there is a direct correlation between a
ham’s antenna height and an ability to properly transmit
signals.3 The Federal Communications Commission (“FCC”)
regulation 47 C.F.R. § 97.15(b) concerns amateur radio
service. The applicable portion of the FCC’s regulation
explains that:
Except as otherwise provided herein, a station
antenna structure may be erected at heights and
dimensions sufficient to accommodate amateur
service communications. (State and local
regulation of a station antenna structure must
not preclude amateur service communications.
Rather, it must reasonably accommodate such
communications and must constitute the
minimum practicable regulation to accomplish
the state or local authority's legitimate purpose.
See PRB–1, 101 FCC 2d 952 (1985) for
details.)4
As indicated by the language of this regulation, the FCC
ruling, PRB-1, must be examined to obtain a more complete
understanding of the regulation’s application.
The FCC issued PRB-1 in 1985 in an attempt “to strike
a balance between the federal interest in promoting amateur
operations and the legitimate interests of local governments in
regulating local zoning matters.”5 Indeed, this ruling weighs
local government, federal government, and amateur radio
operator interests, and has a limited, rather than complete,
federal preemptive effect on local zoning ordinances. Thus, a
zoning ordinance is preempted when a local municipality fails
to apply the land use regulation in a manner that reasonably
accommodates amateur communications. The federal courts
that have interpreted PRB-1 have upheld this preemptive
effect.6
3
Pentel v. City of Mendota Heights, 13 F.3d 1261, 1263 (8th
Cir.1994).
4
47 CFR § 97.15(e).
5
PRB–1 ¶ 22.
6
See, e.g., Evans v. Bd. of Cnty. Comm’rs of Cnty. of
Boulder, 994 F.2d 755, 760–61 (10th Cir.1993); Thernes v.
6
In publishing PRB-1, the FCC did not specify a
minimum height below which local governments must allow
for radio towers. Rather, as the FCC has explained, PRB-1
provides that “local regulations which involve placement,
screening, or height of antennas based on health, safety, or
aesthetic considerations must be crafted to accommodate
reasonably amateur communications, and to represent the
minimum practicable regulation to accomplish the local
authority’s legitimate purpose.”7
Notwithstanding PRB-1’s somewhat vague language,
several principles emerge. First, local municipalities must
reasonably accommodate amateur communications. Second,
zoning ordinances should be the minimum practicable
restrictions which accomplish the local municipalities’
legitimate purposes. Third, local municipalities may not ban
all amateur communications towers. Finally, the FCC has
explicitly declined to regulate the specific permissible heights
for antenna towers.
II.
DePolo’s property is an R1/2 residential zoning district.
On November 25, 2013, DePolo submitted an application to
the Township zoning officer requesting a building permit to
construct a 180-foot tower on his property. His application
was denied by the zoning officer who concluded that Section
208-18(G) of the zoning ordinance limited structures in the
R½ Residence Zoning District to 35-feet.8 Notwithstanding
that restriction, however, the zoning officer offered DePolo a
permit to construct a 65-foot tower. DePolo rejected this
proposal and appealed the denial of his application to the
ZHBA.
City of Lakeside Park, 779 F.2d 1187, 1188–89 (6th
Cir.1986) (per curiam); Williams v. City of Columbia, 906
F.2d 994, 998 (4th Cir.1990); Howard v. City of Burlingame,
937 F.2d 1376, 1380 (9th Cir.1991); Pentel, 13 F.3d at 1261.
7
PRB-1, 101 FCC 2d 952, 960 Fed.Reg. (1985).
8
Tredyffrin Zoning Ordinance, § 208-18, 19(G). § 208-113.
“Area, bulk and height regulations relating to dwellings: The
height of any building shall not exceed 35 feet.”
7
His appeal was accompanied by a variance application
in which he asked the ZHBA to allow him to engage in an
activity that was otherwise prohibited by the zoning
ordinance.9 DePolo’s variance application, if granted, would
have allowed him to erect a tower that exceeded the height
restriction in the ordinance.10 The ZHBA held hearings over a
total of five days between March and June 2014. During those
hearings, DePolo offered expert reports and testimony to
support his contention that the zoning officer erred in refusing
to issue the requested permit. He offered the testimony to
support his claim that, because of the surrounding
topography, he needed an antenna tower of 180-feet to be
able to ensure reliable radio communications.
At the conclusion of the hearings, on October 23,
2014, the ZHBA granted DePolo a variance for a 65-foot
tower, even though he withdrew his application for a variance
prior to the conclusion of the ZHBA hearing. The ZHBA
concluded that DePolo’s proposed 180-foot tower was “not
compatible” with the surrounding residential neighborhood
and would create an adverse visual impact on the
neighborhood. The ZHBA also concluded that the tower’s
“height, mass, and latticework design” was “of a type
universally associated with. . . a factory area or industrialized
complex” and posed a safety hazard to neighboring properties
because its fall radius extended well into those properties.
9
While landowners are ordinarily not permitted to violate
perfectly valid land use regulations, the variance is a
necessary legal mechanism to respond to imperfect
topographical conditions that the ordinance does not
adequately address. A variance in Pennsylvania, where
DePolo’s claim arises, is usually granted if the landowner
establishes by evidence that (1) the physical features of the
property are such that it cannot be used for a permitted
purpose; or (2) that the property can be conformed for a
permitted use only at a prohibitive expense; or (3) that the
property has no value for any purpose permitted by the
zoning ordinance. Hertzberg v. Zoning Board of Adjustment
of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998).
10
Robert S. Ryan, Pennsylvania Zoning Law and Practice, §
1.2.1.
8
While acknowledging that the PRB-1 still gave local
municipalities authority to regulate the height of structures,
the ZHBA noted that the municipality may forbid the
construction and installation of antennas that are associated
with those found in a factory area or an industrialized
complex.11 The ZHBA also noted that a 180-foot tower
greatly exceeds the height of the residences in the area.12 The
ZHBA explained its rejection of DePolo’s preemption claim
as follows:
Regardless, where the height limitations of the
Zoning Ordinance are not absolute and can, by
the very language of the Zoning Ordinance and
the Pennsylvania Municipalities Planning Code,
be varied or modified, they cannot be
considered absolute or unvarying. Therefore,
§208-18.G of the Zoning Ordinance is not
invalid.
Rather than appeal that decision to the Chester County Court
of Common Pleas as provided under the state regulatory
scheme, DePolo filed this suit in federal court. He now claims
that the ZHBA’s 65-foot variance and the zoning ordinance’s
fixed and firm height restriction of 35-feet, as enacted and as
applied, was preempted by PRB-1.
The BOS and the ZHBA moved to dismiss DePolo’s
suit for failure to state a claim. The District Court agreed and
granted the motions. It held that the Township’s proposed
65-foot variance was a valid and reasonable accommodation
for DePolo’s 180-foot tower request and held that the
Township’s local zoning ordinance was not preempted by
11
In the Matter of Modification and Clarification of Policies
and Procedures Governing Siting and Maintenance of
Amateur Radio Antennas and Support Structures, and
Amendment of Section 97.15 of the Commission’s Rules
Governing the Amateur Radio Service, 15 F.C.C.R 22151,
22154 (F.C.C. 2000).
12
The ZHBA stated that “to the extent that the Zoning Officer
did not have the authority to grant a permit for a tower 65 feet
in height, the Zoning Hearing Board does have such authority
and hereby grants said permit for a 65 ft. tower.”
9
PRB-1. The District Court was also troubled by DePolo’s
insistence that a 180-foot tower was necessary to satisfy the
FCC’s reasonable accommodation requirements, and
exhorted the “parties to work together to arrive at a
satisfactory solution.”13 No such solution was achieved. This
appeal followed.
III.
We have jurisdiction pursuant to 28 U.S.C. § 1291. A
District Court’s dismissal of a complaint under Rule 12(b)(6)
is reviewed de novo.14 Accordingly, we assume the truth of
the factual allegations and draw every reasonable inference in
favor of DePolo. We have yet to consider the effect of PRB-1
on local land use disputes. Moreover, this is the first time in
the 30-year history of PRB-1 that a District Court has
dismissed a preemption claim under § 97.15(b) pursuant to
Fed. R. Civ. P. 12(b)(6).
Although we have not decided a PRB-1 preemption
claim, we touched upon it in Izzo v. Borough of River Edge,
843 F.2d 765 (3d Cir. 1988). There, an amateur radio
operator brought action against the Borough of River Edge,
its zoning officer, and members of the planning board,
challenging the legality of the prohibition of a 40-foot
transmission tower. The United States District Court for the
District of New Jersey abstained under Burfod v. Sun Oil
Co.,15 and we held that abstention was improper. We
explained that abstention was unnecessary because land use
regulation was not so technical that it required the District
Court to enmesh itself in a highly specialized local regulatory
scheme. Although DePolo suggests that we should decide
this case on the merits and hold that a 12(b)(6) dismissal is
13
Pentel, 13 F.3d at 1266.
14
Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).
15
319 U.S. 315, 334 (1943) (rather than a federal court
becoming enmeshed in an intricate state regulatory scheme,
“equitable discretion of the federal courts should be exercised
to give [the state] courts the first opportunity to consider it[]”
because “sound respect for the independence of state action
requires the federal equity court to stay its hand.”).
10
simply not appropriate here, the procedural posture of this
case precludes our review of the merits of his claims.
We have explained that “in determining whether a
litigant has been given a ‘full and fair’ opportunity to litigate
a claim, we must take into account the possibility of appellate
review” because a full and fair opportunity to litigate
“includes the possibility of a chain of appellate review.”16
The ZHBA is a state administrative agency acting in a quasi-
judicial capacity. It resolved this dispute by issuing a written
determination containing final findings of fact and
conclusions of law. While DePolo was aggrieved by the
ZHBA’s decision limiting the variance to 65-feet, he had
adequate opportunity to litigate the matter beyond the ZHBA
by appealing to the appropriate Court of Common Pleas
within thirty days of the ZHBA’s decision.17 Rather than do
that, DePolo filed this suit in the District Court, and allowed
the thirty-day appeal period under state law to expire. This
was fatal to his ability to obtain federal review of his claim.18
16
Crossroads Cogeneration Corp. Orange & Rockland Utils.,
Inc., 159 F.3d 129, 137 (3rd Cir. 1998).
17
53 Pa.C.S. § 11002-A (“All appeals from all land use
decisions . . . shall be taken to the court of common pleas of
the judicial district wherein the land is located.”); See also
Dickinson, Inclusionary Eminent Domain 873 (discussing the
appeal process, noting that a developer or landowner whose
permit or variance request is denied may appeal the local
zoning board’s decision in state court.).
18
We acknowledge that this decision leaves amateur radio
enthusiasts with limited avenues into federal court. DePolo
could have appealed the ZHBA’s decision and stayed the
matter in state court, while his federal claims were resolved.
That would have allowed the District Court to narrowly
address the question of preemption. Eichenlaub v. Twp. of
Indiana, 385 F.3d 274, 285 (3d Cir. 2004); See, e.g.,
MacMillan v. City of Rocky River, 748 F. Supp. 1241, 1244
(N.D. Ohio 1990) (radio-operator plaintiff appealed zoning
board decision, secured stay, and filed federal complaint to
resolve preemption claim); Chedester v. Town of Whately,
279 F.Supp.2d 53 (2003)(amateur radio enthusiast brought
suit in both state and federal court simultaneously and District
Court decided to wait until the state court had ruled).
11
DePolo actually withdrew his request for a variance before
the ZHBA and then failed to challenge its factual findings or
legal conclusions in the forum provided under state law. He is
therefore now bound by the final judgment of the ZHBA.19 Its
ruling is a final judgment on the merits that is entitled to
preclusive effect in federal court.20 Accordingly, we will
dismiss this appeal.
Alternatively, the FCC has enforcement powers, conferring
jurisdiction on the District Courts of the United States “upon
application of the Attorney General of the United States at the
request of the Commission, alleging a failure to comply with
or a violation of any of the provisions.” 47 U.S.C. § 401.
19
Ridley Sch. Dist. v. M.R., 680 F.3d 260, 283 (3d Cir. 2012).
20
Id. See Crossroads Cogeneration Corp., 159 F.3d at 135(noting that “factual findings of state agencies should be
given the same preclusive effect they would be accorded in
the courts of that state.”)(citing Elliott, 478 U.S. at
797); Edmundson, 4 F.3d at 189 (“Decisions of state
administrative agencies that have been reviewed by state
courts are…given preclusive effect in federal courts.”); Caver
v. City of Trenton, 420 F.3d 243, 259 (3d Cir.2005).
12