was not supported by substantial
evidence, it is unnecessary to determine whether the Township or
the Board prohibited or had the effect of prohibiting wireless
services in violation of section 337(7)(B)(i)(II) of the TCA.
B. State Law Claims
Because the court finds that the ZHB violated the TCA, it
does not rule on Omnipoint's separate claim that the Board's
decision violated state law.
C. Civil Rights Act
The Board's violation of the TCA does not give rise to a
cause of action under section 1983. The TCA's remedial scheme is
"sufficiently comprehensive to infer Congressional intent to
foreclose a § 1983 remedy." Omnipoint v. Newtown Township, Civ.
A. No. 98-5171, 1999 WL 269936, at *7-10 (E.D.Pa. Apr. 29, 1999);
but see Omnipoint v. Zoning Hearing Bd. of Chadd's Forest
Township, Civ. A. No. 98-3299, 1998 WL 764762, at *4-10 (E.D.Pa.
Oct. 28, 1998) (holding that a section 1983 cause of action is
available); Cellco Partnership v. Hess, Civ. A. No. 98-3985, 1999
WL 178364, at *5-8 (E.D.Pa. March 30, 1999) (holding same).
Omnipoint's claim for section 1983 relief for a violation of
substantive due process is also denied. Such relief is available
where a board's decision was motivated by "bias, bad faith,
improper motive, racial animus, or the existence of partisan
political or personal reasons," Midnight Sessions, Ltd. v. City of
Philadelphia, 945 F.2d 667, 683 (3d Cir. 1991), or the decision is
arbitrary and capricious. See Neiderhiser v. Borough of Berwick,
840 F.2d 213, 217-18 (3d Cir. 1995). Omnipoint argues that
because its decision was not supported by substantial evidence,
the Board acted in an arbitrary and capricious manner. While the
ZHB accorded too much weight to the visual impact of the tower,
such an error does not render its actions arbitrary and
capricious. See Omnipoint v. Penn Forest Township, 42 F. Supp.2d 493,
508 (M.D.Pa. 1999) (rejecting argument that a decision not
based on substantial evidence violates substantive due process).
The court finds that the ZHB's denial of Omnipoint's
application was not supported by substantial evidence in violation
of section 332(7)(B)(iii) the TCA; therefore, it does not rule on
the question of whether section 337(7)(B)(i)(II) or Pennsylvania
law has been violated as well. Omnipoint's claim for relief under
section 1983 is denied.
An appropriate order follows.
AND NOW, this 2nd day of November, 1999, after
consideration of the parties' cross motions for summary judgment
and the responses thereto, and after a hearing, it is hereby
1. Plaintiff's motion is GRANTED in so far as it argues that
Defendant's decision denying Plaintiff's application was not
supported by substantial evidence. Pursuant to this court's
authority under 47 U.S.C. § 332(c)(7)(B)(v), Plaintiff's
request for a Writ of Mandamus is hereby GRANTED. Defendant
is ORDERED to grant the application submitted by Plaintiff to
the Defendant regarding the installation of a
telecommunications facility at 835 Darby-Paoli Road, Berwyn,
Pennsylvania, and to issue the appropriate permits within ten
2. Plaintiff's request for attorney's fees under 42 U.S.C. § 1983
is hereby DENIED. Defendant's motion for summary
judgment on this point is GRANTED.
3. Defendant's motion for summary judgment is DENIED except as to
arguments pertaining to 42 U.S.C. § 1983;