The opinion of the court was delivered by: D. Brooks Smith, District Judge.
MEMORANDUM OPINION AND ORDER
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.
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.
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
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
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. §
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 § 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 ...