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11/17/97 AWACS v. ZONING HEARING BOARD NEWTOWN

November 17, 1997

AWACS, INC. D/B/A COMCAST METROPHONE, APPELLANT
v.
ZONING HEARING BOARD OF NEWTOWN TOWNSHIP, DELAWARE COUNTY, AND ROSE MARIE TITTERMARY



Appealed From No. 96-4911. Common Pleas Court of the County of Delaware. Judge BATTLE.

Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Senior Judge Lord.

The opinion of the court was delivered by: Lord

OPINION BY SENIOR JUDGE LORD

FILED: November 17, 1997

AWACS, Incorporated, d/b/a Comcast Metrophone (Comcast), appeals a Delaware County Court of Common Pleas order upholding a decision of the Newtown Township Zoning Hearing Board (Board) to deny its request for a building permit or special exception permit.

In April 1995, Comcast applied for a building permit to install twelve mobile phone antennae on the roof of Newtown Towers, an apartment building of some 18 stories, at 3400 West Chester Pike in Newtown Township. Newtown Towers is located in the Township's A-O (apartment/office) zone. The application was denied as an unpermitted use and as not accessory to a permitted use. Comcast filed an appeal to the Board, which upheld these denials and also denied Comcast's request for a special exception.

The antennae are four to five feet high and hold transmitters and receivers for Comcast's wireless phone service. They are apparently necessitated by the growing demand for such service and by the rise in incidents of transmission complaints from customers using the service along the West Chester Pike corridor. The antennae would be anchored in each of the corners on top of Newtown Towers, which, in addition to apartments, contains offices on the ground floor. Comcast would also install an electronic equipment room on the ground floor.

Comcast supplies mobile phone service under a license granted to it by the Federal Communications Commission (FCC) and is subject to regulation by that body. Although the FCC has regulatory authority over mobile phone service providers, it has determined that it is not necessary to promulgate extensive regulations and has waived tariff filing requirements.

When the Board denied its application, Comcast appealed to the common pleas court. That court concluded that, since the Pennsylvania Public Utility Code, 66 P.S. §§ 102(2)(iv), expressly excludes mobile domestic telecommunication systems from its regulation as public utilities, Comcast's application was not exempted from zoning regulation by Section 619 of the Pennsylvania Municipalities Planning Code, *fn1 53 P.S. § 10619, which essentially states that zoning ordinances shall not apply to public utilities. The Court also concluded that Comcast not was exempted as a public utility by any specific terms of the township ordinance itself. It held that Comcast's application was neither for an accessory use nor for a permitted use as a special exception.

Comcast now appeals to this Court and challenges as erroneous the common pleas court's Conclusions that Comcast was not exempt from zoning regulations as a public utility simply because the Public Utility Code excludes mobile phone carriers from its definition of the term; that the towers themselves were not accessory uses; and that the towers were not allowable as special exceptions. Finally, Comcast assigns error to the court's decision to uphold the Board's decision because, Comcast argues, the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, 47 U.S.C. § 151(1997), prohibits discriminatory or absolutely prohibitive local regulation of wireless phone service, and enjoins such regulation based on purported environmental effects. *fn2

On the first issue Comcast raises -- whether wireless mobile telephone systems, though excluded from the Public Utility Code's definition of the term, are nonetheless public utilities exempt from zoning regulation -- we note at the outset that this Court has had occasion to address the question recently in Bell Atlantic Mobile Systems, Inc. v. Zoning Hearing Board of O'Hara Township, 676 A.2d 1255 (Pa. Commw. 1996). There we held that a mobile phone service provider was not a public utility so as to entitle it to an ordinance exemption to erect antennae in a residential district, where the applicable zoning ordinance did not define the term "public utility." Our Supreme Court, at 547 Pa. 458, 691 A.2d 458 (1997), has granted a petition for allowance of appeal from our decision in that case, limiting the issue to "what test should be applied to determine whether a business entity is a public utility for zoning purposes where the zoning ordinance does not define that term." Here, because the Newtown Township zoning ordinance also does not define the term "public utility," it is apparent that the Supreme Court's decision in Bell Atlantic v. O'Hara Township will control the answer to the same question in this case.

In O'Hara Township, the appellant Bell Atlantic Mobile Systems, Incorporated, argued that it was a public utility, providing "essential services" and was thus exempt from variance requirements under the local ordinance as a permitted accessory use. In our decision, we held that Bell Atlantic was not a public utility for zoning purposes in the township, finding that the Public Utility Code did not include it as such and the township ordinance did not contain a definition of the term, though the ordinance did permit "essential services," including "public utilities," in the residential zone where Bell Atlantic sought to erect antennae. We declined to create a new definition of the term, applied the definitional provisions of the Public Utility Code, and concluded the Bell Atlantic Mobile Systems was not a public utility.

Comcast contends that this case is controlled by Hawk v. Zoning Hearing Board of Butler Township, 152 Pa. Commw. 48, 618 A.2d 1087 (Pa. Commw. 1992), an earlier decision of this Court, where we found that a mobile phone service provider was a public utility for zoning purposes. However, we distinguished Hawk in O'Hara Township, noting that the ordinance in question in Hawk not only defined the term "public utility" but did so in a manner that included the zoning applicant, in that case Bell Atlantic Mobil Systems as well.

As in O'Hara Township, but in contrast to Hawk, the ordinance here contains no separate definition of "public utility." Until such time as contrary authority is handed down, we follow our O'Hara Township decision and hold that Comcast is not exempt as a ...


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