The opinion of the court was delivered by: Katz, Senior District Judge.
Omnipoint Communications Enterprises, L.P. ("Omnipoint")
seeks to place a 110-foot communications tower in Easttown
Township. At the time of its application to the Township's Zoning
Hearing Board ("ZHB"), such a structure was not permitted under
the Township's zoning ordinance at the site selected by Omnipoint.
The ZHB denied Omnipoint's application, which challenged the
validity of the zoning ordinance or, in the alternative, sought
several variances. Omnipoint then filed suit in this court,
pursuant to the Telecommunications Act of 1996 ("TCA"),
47 U.S.C. § 332(7)(B)(v), challenging that decision. Now before the court
are the parties' cross motions for summary judgment.
According to Omnipoint, the tower is necessary because of a
"gap" in its wireless service along Route 252. The synagogue is
located in an area zoned as AA residential; under the Township's
zoning ordinance, a communications tower is not a permissible use
in such a district.*fn2 See Pl. Ex. 6 at 8 (Easttown Township
Ord. No. 160-80, art. III (1980)). In addition, in an AA
residential area, no structure may be higher than thirty-five
feet. See id. at 9.
Omnipoint submitted an application to the ZHB in which it
alleged that the Township's ordinance prohibited or effectively
prohibited wireless services in violation of the TCA. It also
charged that the ordinance was invalid under Pennsylvania law. In
the alternative, Omnipoint requested a number of variances from
the ordinance, including use and height variances. See Def. Ex. C
(Application of Omnipoint).
The ZBH held three public hearings regarding Omnipoint's
application — on September 16, 1998, October 28, 1998, and January
11, 1999 — and issued a detailed written decision denying the
application on March 17, 1999. The ZHB found that the ordinance
was valid under both Pennsylvania and federal law.
Omnipoint raises several grounds for a ruling in its favor in
its motion for summary judgment. First, it argues that the
Board's decision violated the TCA. Second, it argues that the
decision violated applicable state law. Finally, it alleges a
civil rights violation under section 1983. It requests that the
court reverse the decision of the ZHB and issue a writ of mandamus
ordering the ZHB to grant Omnipoint's application. The ZHB, in
turn, requests summary judgment on these points and asks the court
to uphold its decision.
A. The Telecommunications Act
The TCA was enacted, in part, to balance the need to
establish a national network of wireless communications facilities
with preservation of local authority over zoning decisions. See
Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Township,
181 F.3d 403, 406-07 (3d Cir. 1999). To that end, the TCA provides
limited grounds for appeal to a federal district court from an
adverse zoning decision regarding the siting of a
telecommunications facility. See 47 U.S.C. § 332(7); Pine Grove,
181 F.3d at 406-07. The TCA requires that a decision denying a
request to place or modify a personal wireless services facility
be "in writing and supported by substantial evidence."
47 U.S.C. § 332(7)(B)(iii). Substantively, the TCA mandates, inter alia,
that a state or local government's regulation of such services
shall not "prohibit or have the effect of
prohibiting the provision of personal wireless services."
47 U.S.C. § 337(7)(B)(i)(II).
According to Omnipoint, the ZHB's decision was not supported
by substantial evidence in violation of section 332(7)(B)(iii).
Omnipoint also contends that the Township's zoning ordinance and
the ZHB's denial of its application have the effect of prohibiting
telecommunications services in violation of section
337(7)(B)(i)(II) of the TCA.*fn3
The ZHB's decision upholding the validity of the zoning
ordinance was not supported by substantial evidence. This
standard of review of a local authority's zoning decision under
the TCA is "the same standard applied to federal administrative
decisions." Pine Grove, 181 F.3d at 408 (citations omitted).
Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Id.
(citations and punctuation marks omitted). In ...