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January 26, 1999


The opinion of the court was delivered by: Vanaskie, District Judge.


Plaintiff Omnipoint Communications, Inc. (Omnipoint) filed this action under 42 U.S.C. § 1983 and the Telecommunication Act of 1996, 47 U.S.C. § 332(a)(7), contending that the defendants, City of Scranton and its Zoning Hearing Board (hereinafter collectively referred to as the Zoning Board), improperly denied Omnipoint's request to place commercial communications antennae on a two story building in a "Commercial — Neighborhood" (C-N) zoned area. (Dkt. Entry 1.) In its complaint, Omnipoint sought mandamus relief in addition to monetary damages. On July 10, 1997, Omnipoint moved for summary judgment and a writ of mandamus. (Dkt. Entry 7.)*fn1 On November 21, 1997, Magistrate Judge Raymond J. Durkin issued a Report and Recommendation, finding that the Zoning Board had violated the Telecommunications Act and recommending that the Zoning Board be ordered to allow Omnipoint to place its antennae upon the two story building in the C-N district. On December 4, 1997, the Zoning Board filed objections to Magistrate Judge Durkin's Report and Recommendation. (Dkt. Entry 16.) Because the Zoning Board's written decision is supported by substantial evidence, did not prohibit wireless communication services, and did not unreasonably discriminate between functionally equivalent wireless service providers, Omnipoint's motion for summary judgment will be denied. Moreover, because it is entitled to judgment in its favor, summary judgment will be granted to the Zoning Board.


On January 24, 1997, Jean E. Simchak, as an agent of Omnipoint, applied to the Zoning Board for permission to install commercial communications antennae on a property situated at 139 West Market Street, Scranton, Pennsylvania. (Plf's SMF (Dkt. Entry 9) ¶ 4.)*fn3 The antennae were intended to be part of a wireless digital phone system.*fn4 Through a lease arrangement, the owner of the property consented to the placement of the antennae upon his property. (Id. ¶ 5.) On January 24, 1997, Ronald F. Kitlas, a zoning code enforcement officer, denied the application to install the antennae, finding that the proposed use was only permitted in a C-N district if the antennae were placed upon a non-residential building in excess of five stories. (Id. ¶ 6.) Omnipoint then applied to the Zoning Board for a variance to allow the placement of antennae within the C-N district on the two-story residential building. (Id. ¶ 7.) On March 13, 1997, a Zoning Board hearing was conducted, at which time Omnipoint amended its application to include an appeal of the zoning code enforcement officer's denial of its initial application. (Id. ¶ 8.)

At the hearing, Omnipoint presented several witnesses who had been involved in the search for "cell" sites throughout the Scranton area. According to these witnesses, they were unable to find any building that was more than five stories within the "target" area that encompassed the C-N district. Moreover, the witnesses testified that the possible location of the cell site was limited because each cell site had to be within a certain distance of the adjoining cell sites in order to form a communication grid. Omnipoint presented evidence in the form of graphs to demonstrate that the potential areas were limited and that it was required to construct and maintain a cell site every couple of miles. If there was a gap within the grid, then a user of the digital communication service would find a "hole" in the coverage, i.e., there would be no reception within a certain area in Scranton or the reception would be poor.

Several citizens testified in opposition to Omnipoint's request. First, Claire Mulrooney, a local property owner, testified that she believed that the antennae would be detrimental to the historic nature of the community. Second, an adjoining property owner, James Cusick, testified that allowing the antennae would threaten the visual appearance of the neighborhood, that individuals would avoid the area because of the perceived health risks and that there was a danger of lightening strikes.*fn5 Finally, Joseph Fadden, the President of the North Scranton Neighborhood Association, testified that his organization opposed Omnipoint's application because the antennae would have a negative impact upon the neighborhood. Moreover, Mr. Fadden also opined that Omnipoint's difficulties were self-created in that there were other potential means through which its coverage could be obtained.

At the conclusion of the hearing, the Zoning Board denied Omnipoint's appeal and its request for a variance by a three to one vote. (Def's SMF (Dkt. Entry 9.) On January 18, 1997, the Zoning Board, through its solicitor, Edmund J. Scacchitti, mailed a letter to Omnipoint, indicating that its decision to deny its application was based upon: (1) the fact that antennae are not allowed upon buildings within a C-N district unless the buildings are greater than five stories; and (2) that Omnipoint had failed to demonstrate a hardship that would warrant a variance. (Mar. 18, 1997 Letter (Dkt. Entry 9) Ex. B.) This letter indicated that a more comprehensive opinion would be provided within 45 days. (Id.)

On April 28, 1997, Attorney Scacchitti issued findings of fact and conclusions of law, reiterating the Zoning Board's determination. (Apr. 28, 1997 Opinion (Dkt. Entry 9) Ex. C.)*fn6 The Zoning Board explained that its decision, foreclosing Omnipoint from installing antennae where Omnipoint claimed they had to be placed, was not contrary to the Telecommunications Act of 1996 because: (1) communications antennae were not "essential services" that are permitted in a C-N district; (2) there was no total ban on the placement of communications antennae in Scranton; and (3) Omnipoint had failed to demonstrate an undue hardship necessary for a variance. (Id. ¶¶ 32-39.)

After considering the parties' positions, Magistrate Judge Durkin essentially determined that the Zoning Board's action violated the Telecommunications Act of 1996 in at least three ways. First, Magistrate Judge Durkin determined that the Zoning Board lacked substantial evidence to support its determination that it could permissibly deny the requested application without effectively prohibiting the use of new digital technology within the target zone. (R & R (Dkt. Entry 15) at 17-18.) In this regard, Magistrate Judge Durkin noted that Omnipoint presented testimony that no other viable options were available to it and that no contrary evidence was presented. Second, Magistrate Judge Durkin determined that the denial effectively prohibited the digital personal communication services within the target area, a result he believed was specifically forbidden by the Telecommunications Act of 1996. (Id.) And third, Magistrate Judge Durkin determined that the Zoning Board's interpretation of the relevant ordinance was erroneous. In particular, Magistrate Judge Durkin noted that the relevant ordinances could be interpreted to allow commercial communication antennae under the definition of "essential services." Moreover, Magistrate Judge Durkin indicated his belief that public utilities were permitted to place cellular communications antennae within a C-N district. As a result, Magistrate Judge Durkin concluded that the ordinance discriminated against functionally equivalent services, a result not permitted under the Telecommunications Act of 1996. (Id. at 22-26.) Consistent with these conclusions, Magistrate Judge Durkin recommended that Omnipoint's motion for summary judgment should be granted and that the requested mandamus relief be ordered.

On December 4, 1997, the Zoning Board filed objections to Magistrate Judge Durkin's Report and Recommendation, challenging his determinations that (1) substantial evidence did not exist to support the Zoning Board's action; (2) the relevant ordinance discriminated against functionally equivalent services; and (3) the Zoning Board's decision had the effect of prohibiting the provision of wireless services. (Dkt. Entry 16.) Given these objections, the issues raised by the Zoning Board must be considered de novo. See 28 U.S.C. § 636(b)(1)(C).


A. Scranton Zoning Ordinance

The Scranton Zoning Ordinance divides property into essentially three categories: residential, commercial and industrial. These categories are then subdivided into various districts:

Residential Districts

  C-R     Conservation — Residential District R-1
  Low Density Residential District R-1C Low Density
  Residential — Cluster
  R-1A    Medium Low Density Residential District
  R-2     Medium Density Residential District
  R-2/O   Medium Density Residential — Office
  R-3     Medium High Density Residential District

Commercial Districts

  C-D     Downtown Commercial District
  C-N     Neighborhood Commercial District
  C-G     General Commercial District
  I-L     Light Industrial District
  I-G     General Industrial / Commercial District

Industrial Districts

  INS-G   General Institutional District
  INS-L   Light Industrial-Residential District

(Def's SMF (Dkt. Entry 9) Ex. E, Zoning Ordinance, Article III, § 301.A.) The Ordinance enumerates property "uses" and, for each district, categorizes those uses as (1) permitted by right; (2) conditional use; (3) special exception use; or (4) not permitted. (Id. § 306.A.) The Ordinance provides "[i]f a use is clearly not provided by right, by condition or by special exception by this Ordinance with any Zoning District in the City, the use is prohibited in the City." (Id. § 105.B); see also § 306.B ("Unless otherwise provided in this Ordinance (including Section 105.B), land or structure shall only be used or occupied for a use specifically listed in this Article as being permitted in the respective zoning district.").

Commercial communications "towers" are not permitted in a C-N district, and only allowed through a special exception in C-G, I-L and I-G districts. In relation to commercial communications antennae, the Ordinance provides:

    Any such antenna that is attached to an existing
  business building or a non-residential building of
  more than 5 stories shall not be regulated by this
  Section, and instead is permitted by right ...

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