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OMNIPOINT COMM. ENT. v. ZONING HEAR. BD. EASTTOWN

November 2, 1999

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P., PLAINTIFF,
v.
ZONING HEARING BOARD OF EASTTOWN TOWNSHIP, DEFENDANT.



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

MEMORANDUM AND ORDER

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.

I. Background

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.

II. Discussion

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

1. Substantial Evidence

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 ...


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