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July 26, 2000


The opinion of the court was delivered by: D. Brooks Smith, District Judge.


In this action, plaintiff APT Pittsburgh Limited Partnership ("APT") has sued Lower Yoder Township and its Zoning Hearing Board ("ZHB" or "Board") over the Board's refusal to issue a building permit for APT to erect a cellular communications tower. Plaintiff claims that the Board's action violated the federal Telecommunications Act ("TCA"), Pennsylvania law, and a host of federal constitutional provisions. In accordance with the procedure adopted by numerous other federal courts, I decided to review the ZHB's decision based solely on the record developed before the Board. I also requested that the parties submit proposed findings of fact and conclusions of law based solely on that record made before the Board. Today, I treat those submissions as cross-motions for summary judgment. I conclude that Lower Yoder's ordinance is valid under the TCA, Pennsylvania law, and the federal constitution, and that the defendants refusal to issue a building permit to APT was entirely lawful.


The essential facts in this matter are not in dispute. Pursuant to the Telecommunications Act of 1996 ("TCA"), the Federal Communications Commission ("FCC") awarded APT a Personal Communication Services ("PCS") license for the Pittsburgh Major Trade Area ("MTA"), an area which includes western Pennsylvania, the West Virginia panhandle, and southeastern Ohio. (Tr. at 16; R.R. No. 3(d), Attach. B).*fn1 One of the conditions of APT's license is that it provide "seamless coverage" for all the areas within the MTA. (R.R. No. 3(d), Attach. B). Lower Yoder Township is one of the areas within the MTA.

In March of 1998, APT believed that it needed to fill a gap in its coverage in Lower Yoder Township and on a portion of State Routes 56 and 271. (Tr. at 25-28; R.R. Nos. 17-18). Consequently, APT arranged to lease a parcel of land owned by the Johnstown Water Authority located in the "CS" or conservation district of Lower Yoder. (R.R. Nos.3(d), Attachs. A & B). APT then applied for a building permit to construct a 164-foot tower on that property. (Tr. at 20; R.R. No. 3(d), Attachs. B & D). A municipal water tank was already located on the property in question. (Tr. at 21; R.R. No. 3(d), Attachs. B & D). APT's application was denied by the local Zoning Officer approximately one month later on the grounds that: a communications tower was not a permitted use in the district, the tower height was greater than the thirty-five (35) foot limitation under the zoning ordinance, and the proposed perimeter fence exceeded the local six (6) foot maximum. (R.R. No. 2, Apr. 22, 1998 Letter from W. Patrick to K. McCombs). In May 1998, APT filed a variance request before the ZHB, also raising a validity challenge to the zoning ordinance and an argument that the denial violated the TCA. (R.R. No. 3(d)).

APT's challenge put at issue a number of provisions of Lower Yoder's zoning ordinance, known as Ordinance No. 77. (R.R. No. 20). The first provision is Article 8, which governs "CS" or conservation districts. Id. art. 8. Under this provision, there are only two permitted uses in a CS district, agriculture and open spaces. Id. § 801A. In addition, the maximum height of buildings erected in the CS districts is thirty-five (35) feet. Id. § 802C. It is under Article 8 that APT sought, and was denied, its building permit in March of 1998. (R.R. No. 2, Apr. 22, 1998 Letter from W. Patrick to K. McCombs).

A second provision of Ordinance No. 77 is also relevant to APT's challenge, Article 7 governing the "L" or light industrial district. (R.R. No. 20, art 7). Article 7 enumerates twenty-eight (28) permitted uses, including "[b]roadcasting, radio and television station[s] and any necessary and related facilities." Id. § 701(A)(26). Just in case the enumerated uses do not cover every conceivable industrial or commercial use the Ordinance contains a catchall provision, permitting "[a]ny other compatible type manufacturing/light industrial or commercial use not specifically listed herein when authorized by the Zoning Hearing Board according to the procedure outlined in Section 1002.A.(5)." Id. § 701(A)(22).*fn2 APT did not request permission to build its communications tower in Lower Yoder's L district.

On June 30, 1998, APT presented its case at a hearing before the ZHB. (R.R. No. 1). At this hearing, APT presented the testimony of its zoning manager, Keith McCombs, and its radio frequency engineer, Patrick Tuttle. (Tr. at 19-30). Mr. McCombs described the proposed site, the proposed tower, and the services that APT provides under its FCC license. Id. at 19-22. Mr. Tuttle explained the technology at issue, why a tower of the proposed height was needed at that location, and that the tower met all federal regulations. Id. at 22-30. According to Mr. Tuttle, APT had a current gap in service that it wanted to close by building the new tower at the proposed location. Id. at 26-28. APT also presented evidence that the Lower Yoder zoning ordinance did not explicitly provide for communications towers. Id. at 122.*fn3 Finally, APT demonstrated that other communications facilities had been built in the CS districts in that municipality. Id. at 30-31, 126-127. Concerning these other facilities, some of which are owned by APT, members of the ZHB noted that some of them were put in before the existing zoning ordinance went into effect, some were permitted by special exception, and others went in under a variance. Id. at 126-28.

APT did not provide any evidence at the hearing, however, about other wireless providers. Although APT claimed that it had a gap in its service in portions of Lower Yoder and along Routes 56 and 271, id. at 26-28, it produced no evidence about whether other service providers were currently servicing this gap. Indeed, APT produced no evidence about how other service providers were servicing Lower Yoder Township at all. Further, although APT claimed that other wireless providers had been permitted to place towers in the CS district, id. at 30-31, 126-127, it produced no evidence about whether these providers were, in fact, similarly situated to APT.

APT also failed to produce any evidence at the hearing on another crucial point: whether it, or any other provider, could build a functional communications tower outside of the CS district. APT's engineer, Mr. Tuttle, testified that the topography was the "deciding factor pretty much usually where a lot of sites are placed." Id. at 29. Tuttle testified that the proposed site in the CS district was "appropriate" for APT's communications tower based on the topography and physical characteristics of the proposed site. Id. Nonetheless, he did not mention whether any other sites in Lower Yoder would be "appropriate" for APT's proposed site. Indeed, there was no testimony at the hearing about whether APT even attempted to locate other sites for its proposed tower. Also missing from the hearing was any evidence about whether other sites in Lower Yoder may have been appropriate for service providers other than APT to build a functional communications tower.

At the conclusion of the hearing, the Board, by oral decision, unanimously denied APT's application. Id. at 149-150. On August 7, 1998 the Board issued a written decision with findings of fact and conclusions of law explaining its denial. (R.R. No. 19). In this written decision, the ZHB rejected APT's validity challenge to the zoning ordinance because antenna towers could be located in the "L" or light industrial district; thus, such towers were not impermissibly excluded from the entire municipality. Id. at IVA. The Board also ruled against APT on its variance request, holding that APT had adduced no evidence concerning any unique characteristics of the Water Authority parcel that justified hardship relief, and no evidence that the use would not alter the essential characteristics of the neighborhood or impair the use of adjacent property. Id. at IVC. The Board additionally dismissed APT's challenge under the TCA, opining that, because communications towers are permitted in the L district, the ordinance does not amount to a blanket exclusion or prohibition of wireless services. Id. at IVB. It further noted that, although other carriers' towers were permitted in other CS districts within the Township, those facilities either predated the enactment of the ordinance or were constructed pursuant to properly supported variance applications. Id.

Approximately a week before the ZHB issued its written denial, APT filed a complaint in this court alleging that Lower Yoder Township and its ZHB (collectively "defendants") violated the federal TCA, Pennsylvania law, and a host of federal constitutional provisions. Dkt. no. 1. In April 1999, I dismissed a number of APT's claims, but left the meat of its allegations intact. Dkt. no. 11. In late June 1999, at the request of APT and in accordance with the procedure adopted by numerous other federal courts, I decided to review the ZHB's decision based solely on the record developed before the Board. Dkt. no. 17. Consequently, I asked the defendants to submit a certified copy of the record developed at the June 30th hearing to the Clerk of Court. Id. And I ordered that each party submit to this court proposed findings of fact and conclusions of law. Id.


Procedurally, I will treat the submissions of the parties as cross-motions for summary judgment under Federal Rule of Civil Procedure 56.*fn4 Summary judgment is appropriate where admissible evidence fails to demonstrate a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). "The burden on the moving party may be discharged by showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). "[S]ince a complete failure of proof concerning an essential element," id. at 323-24, 106 S.Ct. 2548, on which a party bears the burden of proof at trial establishes that the moving party is "entitled to a judgment as a matter of law," the nonmoving party must establish the existence of every element essential to its case. Id.; Omnipoint Communications Enters., L.P. v. Newtown Township, Nos. 99-1453, 99-1455 and 99-1458, slip. op. at 5 (3d Cir. July 13, 2000). Such evidence must be significantly probative and more than "merely colorable." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).

Once the moving party has satisfied its burden, the nonmoving party is required by Fed.R.Civ.P. 56(e) to establish that there remains a genuine issue of material fact. Clark v. Clabaugh, 20 F.3d 1290, 1294 (3d Cir. 1994). The nonmovant "may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law," id. at 248, 106 S.Ct. 2505, and is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 257, 106 S.Ct. 2505.

In determining whether a nonmovant has established the existence of a genuine issue of material fact, the evidence of the nonmovant must "be believed and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. Whether an inference is justifiable, however, depends on the evidence adduced. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 595-96, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An inference based upon speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). Likewise, "simply show[ing] that there is some metaphysical doubt as to the material facts" does not establish a genuine issue for trial. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.

Nor will the submission of an affidavit always create a genuine issue of material fact. Rule 56(e) requires that the affidavit "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Accordingly, "[a]n affidavit that is essentially conclusory and lacking in specific facts is inadequate. . . ." Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (internal quotation marks omitted) (quoting Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 789-90 (3d Cir. 1978)). Similarly, statements made only on belief or on information and belief may not be considered. 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738, at 350-56 (1998).

Applying this standard to the undisputed facts of this case, I conclude that summary judgment should be entered for the defendants, Lower Yoder Township and the ZHB, on all counts raised by APT.


I will first address plaintiff's claims under the TCA. Enacted in 1996, the TCA was an effort to balance two competing goals: 1) the goal of facilitating growth in the personal communications services industry through the expansion of communications towers, H.R. Conf. Rep. No. 104-204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61; with 2) the goal of preserving the authority of state and local governments to regulate land use and zoning. Id. at 94-95, reprinted in 1996 U.S.C.C.A.N. at 61; see also Town of Amherst, N.H. v. Omnipoint Communications Enters., Inc., 173 F.3d 9, 13 (1st Cir. 1999) (stating that the TCA was "a deliberate compromise between two competing aims — to facilitate nationally the growth of wireless telephone services and to maintain substantial local control over siting of towers."). The version of the bill passed by the House of Representatives would have stripped local governments of their authority over zoning matters altogether by requiring the FCC to regulate the siting of wireless telephone transmitters. See Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Township, 181 F.3d 403, 407 (3d Cir. 1999). The Conference Committee instead decided to preserve this authority by enacting 47 U.S.C. § 332(c)(7) which "preserve[s] the authority of State and local governments over zoning and land use matters except in . . . limited circumstances." H.R. Conf.Rep. No. 104-458, at 207-208, reprinted in 1996 U.S.C.C.A.N. at 222; see also 47 U.S.C. § 332(c)(7)(A) (stating that "nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.").

The scope of these limited circumstances is at issue in this case. Section 332(c)(7)(B) of the TCA imposes a number of limitations on State and local zoning authority. First, State and local authorities "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Second, State and local authorities "shall not unreasonably discriminate among providers of functionally equivalent services." Id. § 332(c)(7)(B)(i)(I). Finally, any decision by State or local authorities "to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." Id. § 332(c)(7)(B)(iii).


Plaintiff first argues that Lower Yoder's zoning ordinance prohibits or has the effect of prohibiting the provision of personal wireless services in violation of ยง 332(c)(7)(B)(i)(II) of the TCA. A wireless provider, like APT, can prove a violation of this provision in two ways: it can show that the municipality actually "prohibits" the provision of wireless services; or it can show that the ...

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