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OMNIPOINT COMMUNICATIONS, INC. v. FOSTER TP.

April 30, 1999

OMNIPOINT COMMUNICATIONS, INC., PLAINTIFF,
v.
FOSTER TOWNSHIP, DEFENDANT.



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

MEMORANDUM

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 Foster Township (Foster) improperly denied Omnipoint's request for a special exception to erect a 195 foot monopole on a two-acre lot in a C-1 zoned area. (Dkt. Entry 1.) In its complaint, Omnipoint sought mandamus relief in addition to monetary damages. On April 1, 1998, Omnipoint moved for partial summary judgment as to liability and for the issuance of peremptory judgment of mandamus. (Dkt. Entry 14.) On April 9, 1998, Foster moved for partial summary judgment on the § 1983 claim (Count II), contending, inter alia, that a § 1983 claim for monetary damages cannot be based upon a violation of the Telecommunications Act. (Dkt. Entry 21.)

Because the denial of Omnipoint's request to erect its 195 foot monopole was not supported by substantial evidence, Omnipoint's motion for partial summary judgment on the Telecommunications Act claim will be granted and a peremptory judgment of mandamus will be entered against Foster. Because a violation of the Telecommunications Act is not redressable by way of a § 1983 claim and Omnipoint has not alleged facts sufficient to support a cognizable civil rights claim, Foster's motion for partial summary judgment on the § 1983 claim will be granted.

I. BACKGROUND

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 April 3, 1997, Omnipoint applied to build a 195 foot monopole on a two-acre parcel of land situated in a C-1 district in Foster Township. (PI's SMF (Dkt. Entry 17) ¶¶ 8-9.)*fn1 This application was denied by a Foster Township zoning officer, who determined that a communication tower is not a permitted use in a C-1 district. (Id. ¶ 10.) The zoning officer indicated that Omnipoint needed a special exception in order to erect its 195 foot tower on the proposed site. (Id.)

Omnipoint then filed a request for a special exception with the Foster Township Zoning Hearing Board (hereinafter referred to as "the Board"). (Id. ¶ 13.) Hearings on Omnipoint's request were conducted on September 3, 1997 and October 1, 1997. (Id.) At the time of these hearings, Omnipoint amended its application for a special exception to include an appeal of the zoning officer's determination that its proposed monopole was not a permitted use in a C-1 district. (Id. ¶ 14.) Omnipoint argued that its proposed monopole qualified as a public utility permitted use. (Id.)

The Board determined that Omnipoint's proposed use was not a permitted public utility use. (Id. ¶ 15.) Moreover, the Board also denied the request for a special exception, finding that Omnipoint had failed to meet the requirements for a special exception. (Id. ¶ 15.) In particular, the Board found:

  5. The Zoning Code of Foster Township provides for
  expressed standards or specific requirements in
  Section 604 of Article 6, and in Section 1510.2 of
  Article 15. Among the standards set forth therein is
  one that requires a demonstration that public
  services and facilities such as streets, sewage
  disposal, water, police and fire protection shall be
  adequate for the proposed use. In the instant manner
  there was no demonstration that police, fire or
  emergency protection would be adequate for the
  proposed use, or that the township would be able to
  handle such accidents or emergencies which may arise
  at the site during its construction, maintenance,
  servicing or repair. There was no demonstration that
  the township has such emergency trained personnel to
  deal with such problems. Also, the 10 foot wide dirt
  lane was not demonstrated to be adequate for the
  conveying of such public services. Thus, the
  application falls short of demonstrating adequate
  access and services for such matters, as required
  under Paragraphs B and C of Section 604 of Article 6,
  and 1 and 2 of Section 1502.2 of Article 13.
  6. The other uses and activities in the vicinity are
  primarily residential, or of a rural-farming nature,
  as demonstrated by both the Applicant and the
  protester. The proposed 195 foot lattice tower, with
  concrete pad for BTS unit, is not harmonious to other
  activities existing in the vicinity in terms of its
  location and size and the nature of the operation
  involved. Therefore, the applicant does not meet the
  requirement of Paragraph D in Section 604, and
  Paragraph 3 of Section 1510.2.
  7. The other uses and activities existing in the
  vicinity will not be harmonious with the proposed use
  in terms of the character and height of the buildings
  and structures. Thus, the applicant does not meet the
  requirements of Subparagraph E of Section 604, and
  Paragraph 4 of Section 1510.2.
  8. The Applicant's case, exhibits and site plan makes
  no mention of provisions for offstreet parking at the
  facility, as is required in Paragraph B of Section
  603 of Article 6, Site Plan. Section 1116 of Article
  11 requires that any commercial use or nonresidential
  use of a structure, building or land not specifically
  listed within Section 1115 of the ordinance shall
  provide for one offstreet parking space for every 300
  square feet of gross floor or lot area.
  9. Furthermore, Section 1106 of Article 11 requires
  for grading for proper drainage and surfacing to
  provide for durable and dustless surfaces for
  offstreet parking areas. The Applicant's plan does
  not contain any such provision and thus the Applicant
  has failed to meet other specific criteria for its
  proposed use. Hence, the Applicant's application does
  not meet any of these requirements of the Zoning
  Ordinance.

(Def's Exs. (Dkt. Entry 18) Ex. 1.)

II. DISCUSSION

  A. Omnipoint's Motion for Summary Judgment on the
    Telecommunications Act Claim

1. Foster Township Zoning Ordinance

Omnipoint's proposed site is located within a C-1 district (Conservation District). A communication tower is not a permitted use within a C-1 district; rather, the Ordinance specifically provides that a communication tower is a use permitted by special exception. (Def's Exs. (Dkt. Entry 18) Ex. 2, Zoning Ordinance, §§ 506.1-.2.) The Ordinance also provides that "any building, structure and/or use" must be located on a lot with an area of two acres or more. (Id. § 506.4.)

Under Section 604 of the Foster Township Zoning Ordinance, the following standards are considered to determine whether ...


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