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April 7, 1999


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


Before us are the parties' cross-motions for summary judgment that involve the interplay of federal and state interests in the rapidly expanding field of cellular phone technology. For the reasons that follow, we will grant in part and deny in part both motions and will remand to the defendant Board of Supervisors for further proceedings.

I. Facts

The parties agree on the basic facts. In August of 1997, plaintiff Sprint Spectrum L.P. ("Sprint") leased space at 5492 West Chester Pike in Willistown Township, Chester County, in order to construct a personal communications system ("PCS") base station. Sprint's proposed PCS base station would consist of an unmanned 150-foot tall tower with antennae and utility lines on it, with several refrigerator-size cabinets at its base to hold radio and power units.

The proposed PCS site is located in the "RU" (Rural) District of Willistown Township. Under the Township's zoning ordinance, the following uses are allowed in the RU district:

  Township or governmental use, bus passenger shelters,
  electric substations, utility line or similar use,
  including as a multiple use when authorized pursuant
  to Section 139-15(B).

Willistown Township, Pa., Zoning Ordinance § 139-12.E (Nov. 14, 1995).

On August 29, 1997, Sprint applied to the Township Zoning Officer for a determination that the proposed PCS radio station was a permitted conditional use of the property under the zoning ordinance. By letter dated September 18, 1997, the Zoning Officer denied Sprint's application, concluding that a "PCS radio base station and a 150' tall monopole tower is not permitted in . . . the RU Zoning District." The Zoning Officer determined that Sprint's use would, however, be permitted in the RI (Restricted Industrial) District, under Section 139-73.A.(5) and (6) of the zoning ordinance as a use of the "same general character" as a consumer service facility.*fn1

On October 9, 1997, Sprint appealed the Zoning Officer's decision to Willistown Township's Zoning Hearing Board ("ZHB"), arguing that the Zoning Officer had misinterpreted the zoning ordinance. Sprint also challenged the validity of the ordinance, because, it argued, if the Zoning Officer's interpretation were upheld, the ordinance would have the effect of excluding PCS towers from Willistown Township.

The ZHB held hearings on November 19, 1997, December 12, 1997, and January 14, 1998. On March 25, 1998, the ZHB denied Sprint's request to erect its PCS tower in the RU zone, and also denied its request to declare the zoning ordinance invalid. Sprint thereafter filed a complaint in this Court, seeking relief under the federal Telecommunications Act of 1996, 47 U.S.C. § 332 (West Supp. 1998) ("TCA") and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq. (West 1997 and Supp. 1998) ("MPC").

Also on October 9, 1997, Sprint filed an application with the Willistown Township Board of Supervisors ("Board of Supervisors" or "Board") for conditional use of the property pursuant to sections 139-12(E), 139-15(B), and 138-118.1 of the zoning ordinance.*fn2 On November 25, 1997, the Board of Supervisors held a meeting*fn3 at the Township's offices, after advertising that Sprint's conditional use application would be heard at the meeting. At the beginning of the meeting, the Township's attorney, Ronald Nagle, asked the Board to continue the hearing on Sprint's application until the ZHB heard and decided Sprint's appeal. Over Sprint's objection, the Board decided to continue the hearing. Sprint thereafter filed a complaint in this Court against the Board, again seeking relief under the TCA and the MPC.*fn4 On April 21, the Board reconvened and accepted for its record the ZHB decision. On June 2, in a written opinion, the Board denied Sprint's application, concluding that "Sprint is not entitled to conditional use approval of its proposed radio base station . . . as a multiple use pursuant to § 139-15.B. since Sprint's proposed use is not a permitted use [in the RU zone]," see June 2, 1998 Decision of Board of Supervisors of Willistown Township at 5.

The parties have filed cross-motions for summary judgment on both of Sprint's complaints.*fn5 As there are no genuine issues of material fact in dispute, this case is ripe for summary judgment.

II. Sprint v. Board of Supervisors

Sprint has moved for summary judgment against the Board of Supervisors, arguing that the Board failed to hold a timely hearing on Sprint's application for conditional use approval, in violation of both the TCA and the MPC, and therefore that Sprint is entitled to mandamus relief. Sprint bases its argument on the fact that the Board, at its November 25, 1997 gathering, decided to continue the hearing, without taking any testimony, until after the ZHB reached its decision on Sprint's appeal. The Board also has moved for summary judgment, arguing that its decision to continue the hearing and adopt the findings of the ZHB does not violate either federal or Pennsylvania law.

A. The TCA

Congress adopted the TCA, 47 U.S.C. § 151 et seq., which became law on February 8, 1996, to increase competition in the telecommunications industry. To this effect, it imposes significant limitations on the authority of state and local governments to regulate the placement of communications facilities. See, e.g., Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 2337-38, 138 L.Ed.2d 874 (1997) (stating that the TCA's "primary purpose was to reduce regulation and encourage the rapid deployment of new telecommunications technologies" (internal quotation omitted)); Paging, Inc. v. Board of Zoning Appeals, 957 F. Supp. 805, 807 (W.D.Va. 1997) (noting that "Congress passed the [TCA] in order to provide a procompetitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition") (internal quotation omitted); Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 49 (D.Mass. 1997) ("Although the TCA `does not completely preempt the authority of state and local governments to make decisions regarding the placement of wireless communications service facilities within their borders,' it does impose significant limitations on this authority") (quoting BellSouth Mobility, Inc. v. Gwinnett County, 944 F. Supp. 923, 927 (N.D.Ga. 1996)).

The TCA provides that

    A State or local government or instrumentality
  thereof shall act on any request for authorization to
  place, construct, or modify personal wireless service
  facilities within a reasonable period of time after
  the request is duly filed with such government or
  instrumentality, taking into account the nature and
  scope of such request.

47 U.S.C. § 332(c)(7)(B)(ii). The purpose of this provision is to "stop local authorities from keeping wireless providers tied up in the hearing process." Town of Easton, 982 F. Supp. at 50, quoting Westel-Milwaukee Co. v. Walworth County Park & Planning Comm'n, 205 Wis.2d 244, 556 N.W.2d 107 (App. 1996).

Sprint alleges that by continuing the hearing on Sprint's application for conditional use approval, the Board of Supervisors did not act "within a reasonable period of time" and therefore violated the TCA. Because, at least in this context, we interpret the TCA's "reasonable period of time" as congruent with the MPC's sixty-day time limit, see infra part B, we will analyze ...

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