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OMNIPOINT CORP. v. ZONING HEARING BD. OF PINE GROV

September 16, 1998

OMNIPOINT CORPORATION and LINDA GENTH, Plaintiffs,
v.
ZONING HEARING BOARD OF PINE GROVE TOWNSHIP, Schuylkill County, Pennsylvania, and BOB PANKAKE, in his official capacity as zoning officer for Pine Grove Township, Defendants.



The opinion of the court was delivered by: VAN ANTWERPEN

DECISION AND ORDER

 Van Antwerpen, J.

 September 16, 1998

 I. INTRODUCTION

 This action is filed under the Telecommunications Act of 1996, 47 U.S.C. § 332, ("TCA"). The Plaintiffs in this case, Omnipoint Corporation ("Omni") and Linda Genth, seek review of the Zoning Hearing Board of Pine Grove Township's ("Board") denial of its application for a special exception under § 902(3) of the Pine Grove Township Ordinance ("Zoning Ordinance").

 We have reviewed the record and conclude that for the following reasons, Defendants have violated the TCA and Plaintiffs are entitled to the relief requested. *fn1"

 II. BACKGROUND

 Plaintiffs and Defendants have stipulated to the following facts. On June 30, 1997, Omni applied for a special exception with the Board in order to erect a 114-foot telecommunications tower (monopole) on the property owned by Linda Genth. Jt. Statement at P 5. *fn2" A telecommunications tower is a use permitted by special exception in the R-P Zoning District under the Zoning Ordinance. Id. at P 8.

 The Board held hearings on August 14, 1997 and September 11, 1997, to take testimony in regard to Omni's application for a special exception. Id. at P 7. Lee Woodmansee, representing Omni through JM Consulting Group, presented testimony at the hearing on August 14, 1997. Id. at P 9. He explained how Omni qualifies for a special exception pursuant to the requirements of § 902(3) of the Zoning Ordinance. Id. at P 17. Mr. Woodmansee also testified that he had no first-hand knowledge about the effects of the structure on the values of adjoining properties and did not conduct any studies on the effects of the tower on the health and safety of the residents. See id. at P 18-20. In response, a couple of adjoining landowners testified against the proposed erection of the tower. One adjoining landowner, David Ravegun, testified that the installation of the proposed structure would have an adverse effect on the value of his property, the character of the neighborhood and would endanger his health and safety. See id. at P 35-43. Eleven additional protestants attested to the fact that if called to testify, they would raise substantially similar concerns as raised by Mr. Ravegun. Id. at 44-46.

 Omni's application was denied in a written decision by the Board on October 21, 1997. Decision at 3. *fn3" In particular, the Board elucidated the following two reasons for its denial: "(1) no studies were done on the effect of adjoining land owners property values; and (2) the burden of proof with respect to the proposed structure not adversely effecting [sic] the general character of the neighborhood was not met." Id.

 Plaintiffs are now asking this court to review the record of Omni's application to the Board and determine whether the Board's denial is in compliance with the TCA. In contrast, Defendants allege that the Board's decision did not violate the TCA because its denial of Plaintiffs' application for a special exception permit was supported by substantial and credible evidence. We will consider each of these arguments in turn.

 III. DISCUSSION

 The primary purpose of the TCA is to increase competition in the telecommunications industry by preventing discriminatory and arbitrary conduct by local zoning boards relating to the placement, construction, and modification of personal wireless service facilities. While generally preserving the authority of local zoning boards, see 47 U.S.C. § 332(c)(7)(A), the TCA does explicitly limit certain aspects of the authority of local boards to regulate personal wireless services.

 The TCA specifically states that state or local zoning regulations pertaining to wireless service facilities, "shall not unreasonably discriminate among providers of functionally equivalent services." 47 U.S.C. § 332(c)(7)(B)(I)(I). Nor may any state or local authority prohibit or have the effect of prohibiting "the provision of personal wireless services." Id. § 332(c)(7)(B)(I)(II). The TCA also procedurally requires that any request to place, construct, or modify personal wireless service facilities must be acted upon by authorities "within a reasonable period of time after request is duly filed" and any denial "shall be in writing and supported by substantial evidence contained in a written record." Id. § 332(c)(7)(B)(ii)-(iii). By denying Omni's application to place a telecommunications tower on the property owned by Genth, Defendants' actions clearly fall under the auspices of the TCA and abstention by this court would be improper. *fn4" See, e.g., AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment, 11 F. Supp. 2d 760, 1998 U.S. Dist. LEXIS 9304, No. 97- CVO1246, 1998 WL 337748, at *2 (M.D.N.C. Jun. 12, 1998); Gearon & Co., Inc. v. Fulton County Georgia, 5 F. Supp. 2d 1351, 1354 (N.D. Ga. 1998); Western PCS II v. Extraterritorial Zoning Auth., 957 F. Supp. ...


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