The opinion of the court was delivered by: CALDWELL
Plaintiffs, Omnipoint Communications, Inc. ("Omnipoint") and William and Debra McCommon, brought this action under the Telecommunications Act of 1996, 47 U.S.C. § 332, against Defendants, the Zoning Hearing Board of East Pennsboro Township (the "Zoning Hearing Board" or the "Board") and Richard Ernest, Zoning Officer for East Pennsboro Township. Before us is Defendants' motion to dismiss.
Omnipoint is a licensed provider of personal wireless communications services. On March 14, 1997, Plaintiffs applied to East Pennsboro Township (the "Township") for a building permit to install a 100 foot high telecommunications monopole on land owned by the McCommons and leased by Omnipoint. The McCommons' property is in an R-1 (Residential) zoning district. Ernest issued Plaintiffs a building permit on March 25, 1997.
On June 9, 1997, the Township solicitor wrote to the McCommons to advise them that a telecommunications tower was not a permitted use in an R-1 district, and directing them to stop work on the tower and apply to the East Pennsboro Planning Commission (the "Planning Commission") if they desired a building permit.
Omnipoint appealed this revocation of the building permit to the Zoning Hearing Board on June 23, 1997. The Board denied Omnipoint's appeal on August 21, 1997, and issued a written decision confirming the denial on September 18, 1997. (See Compl. Ex. A). The Board found that the Township's zoning ordinance did not specifically permit telecommunications towers in R-1 districts, and therefore concluded that Omnipoint's building permit had been issued in error, and, under the ordinance, Omnipoint would have to obtain the approval of the Planning Commission before being issued a permit.
The Township had previously issued building permits to Vanguard Cellular Systems, Inc. ("Vanguard") to build two communications towers in R-1 zoning districts in 1994 and 1996.
Plaintiffs brought this action on October 17, 1997, seeking injunctive relief and a writ of mandamus. Plaintiffs raise a cause of action under Section 332(c) of the Telecommunications Act, 47 U.S.C. § 332(c), as well as a pendant common law claim asserting a vested right in the building permit. Defendants have moved for dismissal, arguing that Plaintiffs' claims are not ripe, and that Plaintiffs have failed to state a claim upon which relief can be granted.
When considering a motion to dismiss under Rule 12(b), "all facts alleged in the complaint and all reasonable inferences that can be drawn from them must be accepted as true." Malia v. General Elec. Co., 23 F.3d 828, 830 (3d Cir. 1994). The motion must be denied unless the plaintiff cannot prove any facts in support of the claim which would entitle it to relief. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).
A. Failure to State a Claim under 47 U.S.C. § 332(c)
In Section 332(c), the Telecommunications Act grants certain protections to providers of mobile telecommunications services in their relations with local government. Plaintiffs allege that Defendants' conduct violates the Act's prohibition against unreasonable discrimination among ...