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March 31, 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(c)(7), contending that the defendant Penn Forest Township (Penn Forest) improperly denied Omnipoint's request to place a 150 foot monopole on a 1.49 acre lot in a C-1 zoned area. (Dkt. Entry 1.) In its complaint, Omnipoint sought mandamus relief in addition to monetary damages. On February 13, 1998, Penn Forest moved to dismiss the complaint, contending, inter alia, that Omnipoint had failed to alleged sufficient facts to support a claim for mandamus relief and that a § 1983 claim for monetary damages cannot be based upon a violation of the Telecommunications Act. (Dkt. Entry 12.) On March 16, 1998, Omnipoint moved for summary judgment and for the issuance of peremptory judgment of mandamus. (Dkt. Entry 16.)

Because the denial of Omnipoint's request to erect its 150 foot monopole was not supported by substantial evidence, Omnipoint's motion for summary judgment will be granted and a peremptory judgment of mandamus will be entered against Penn Forest. Because Congress has provided a comprehensive mechanism for judicial review for alleged violations of the Telecommunications Act, thereby implicitly foreclosing a § 1983 action, Penn Forest's motion to dismiss the § 1983 claim will be granted.


In enacting the Telecommunications Act of 1996, Congress extended federal court jurisdiction to local zoning decisions affecting the placement of communications antennae needed to create a seamless system for the transmission of wireless communications. To understand why Congress made the federal courts the fora for adjudication of zoning disputes, a brief narration of the manner in which personal wireless communications systems operate is instructive:

    [Personal Communication Services] and wide area
  [specialized mobile radio services] operate by
  transmitting low power radio signals between
  mobile, wireless units and fixed antennae mounted
  on towers, buildings, or other structures. Signals
  generated by mobile transmitters are fed to
  electronic cabinets at the base of the antennae,
  where they are connected to telephone lines, over
  which the transmission is routed to ordinary
  telephone equipment located anywhere in the world.
  A single antenna and its related equipment cabinet
  are called a "cell site."
    The distance over which the low-power signals
  emitted by mobile transmitters may be effectively
  broadcast to fixed, cell site antennae is limited
  to a relatively small geographic area, called a
  "cell." Accordingly, an overlapping,
  interconnected quilt of cells must be stitched
  together to provide seamless coverage. Where there
  is a "gap" in the pattern, the user's call is
  "dropped" or "disconnected."

Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1460 (N.D.Ala. 1997).

On January 28, 1997, Omnipoint made an application to build a 150 foot monopole tower on a 1.49 acre lot in the Penn Forest Streams Development in connection with Omnipoint's efforts to develop a personal wireless telecommunications system in Northeastern Pennsylvania. (Def's SMF (Dkt. Entry 17) ¶ 8.) The proposed property was zoned as a C-1 district. On February 7, 1997, Roseann Cochrane, a Penn Forest Zoning Officer, denied the application on the ground that a communications tower was not a permitted use in a C-1 zone and instructed Omnipoint that a use and height variance was required. (Pl's SMF (Dkt. Entry 17) ¶ 10.) Omnipoint then filed a request for a variance with the Penn Forest Hearing Board. (Id. ¶ 11.)

On April 3, 1997, a public hearing was conducted. Omnipoint participated in the hearing without legal counsel. The Hearing Board denied the request for a use variance. (Pl's Exs. (Dkt. Entry 18) Ex. A.) Observing that § 5.300 of the Ordinance required a minimum lot size of 2 acres in a C-1 district, (id. ¶ 4), the Hearing Board concluded that Omnipoint needed a use variance before it would be permitted to build its monopole.*fn2 After setting forth the heavy burden necessary for a variance, the Hearing Board simply stated that Omnipoint had failed to meet its burden in that "the physical characteristics of the property could be used for a permitted purpose in a C-1 zoned district." (Id. ¶ 6.)*fn3

Omnipoint did not appeal this decision. Instead, on May 28, 1997, Omnipoint made a second zoning permit application. (Pl's Exs. (Dkt. Entry 18) Ex. C.) Omnipoint, now represented by counsel, contended that the Board had erred in applying the 2-acre size requirement because the proposed 1.49 acre lot was a nonconforming lot, i.e., it had been subdivided prior to the imposition of the two acre minimum. Omnipoint argued that the 2-acre restriction was not applicable to the nonconforming lot.*fn4 In addition to the argument that its proposed monopole was a permitted use in a C-1 district, Omnipoint also argued that, as a nonconforming lot, no height requirement could be imposed. (Id.)*fn5 Omnipoint's application was again denied. (Def's SMF (Dkt. Entry 17) ¶ 16.)

Omnipoint appealed this determination to the Zoning Hearing Board, repeating its arguments that (1) its proposed monopole was a permitted use in a C-1 district; (2) no height restriction could be imposed; and (3) no acreage restriction could be applied to a nonconforming lot. On August 8, 1997, a hearing was held before the Zoning Hearing Board. (Def's Exs. (Dkt. Entry 18) Ex. F.) On September 16, 1997, the Zoning Hearing Board denied Omnipoint's appeal and application, finding:

    The location of the proposed tower immediately
  adjacent to a major highway through the Township
  and surrounded by a residential development, Penn
  Forest Streams, leaves questions as to the safety
  of users of the highway and residents in the
  Development of Penn Forest Streams. The severity
  of the winters in the Pocono area are notorious,
  both in the quantity of snow and the intensity of
  winds and ice.
    Section 4.300 of the Penn Forest Township Zoning
  Ordinance provides:


    Fourteen "Use Classes" are hereby established as
    shown in Schedule I. The specific uses included
    in each Use Class are outlined below and none of
    these uses shall be permitted in any district if
    they are to be operated in such a manner as to
    create any dangerous, injurious, noxious, or
    otherwise objectionable fire, explosive,
    radioactivity, or other hazard; noise or
    vibration, smoke, dust, dirt, or other forms of
    air pollution, electrical glare or other
    disturbance, as identified in Article V, which
    will adversely affect the surrounding area or
    Even if the erection of the tower is under the
  strict intent of the Ordinance permissible, it
  creates a danger and a hazard and would adversely
  affect the surrounding area.
    The adjoining property owners, residents of Penn
  Forest Streams, objected to the location of the
  tower and stated their reasons and concerns.
    The Telecommunications Act is not being violated
  by this decision. The decision is primarily based
  on safety of towers and their danger to the
  surrounding areas. The contention that the Township
  Zoning Hearing Board discriminated against it,
  because the Zoning Hearing Board permitted a
  similar tower to be erected in a C-1 district in
  the Township is unfounded. The Act

  prohibits unreasonable discrimination, and was
  intended to encourage free competition by
  preventing a municipality from favoring certain
  providers. This is not the case. The very location
  of the Cellular One tower is in a rural sparsely
  populated area is the sole reason for the granting
  of Cellular One's application.

(Def's Exs. (Dkt. Entry 18) Ex. D, at 4-5 (emphasis added).)

The Board did not dispute Omnipoint's contention that its proposed monopole was a permitted use in a C-1 district and that a nonconforming lot was not subject to the acreage and height limitations. Instead, it rested its determination upon safety concerns. Omnipoint challenges this determination as not being supported by substantial evidence; as unreasonably discriminating against it in view of the Board's decision to allow Pennsylvania Cellular Telephone Corp. to erect a tower in a C-1 district; and as having the effect of denying personal wireless services.


  A.  Omnipoint's Motion for Summary Judgment on the

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