First, the ordinance is manifestly not a de jure exclusion.
Contrary to APT's repeated assertions, the ordinance does not
expressly prohibit communications towers in Lower Yoder Township.
See supra IIIA. As noted above, the ordinance provides for the
construction of such towers in its light industrial or "L"
district. Id. Consequently, Ordinance No. 77 does not "on its
face, totally ban a legitimate use." Farrell, 481 A.2d at
989; see also Zajac v. Zoning Hearing Board of Mifflin
Township, 41 Pa.Commw. Ct. 7, 10, 41 Pa. Cmwlth. 7,
398 A.2d 244, 246 (1979) ("to avoid being exclusionary, an ordinance need
not allow a use absolutely, as a permitted use, but may allow it
conditionally by way of special exception"); D.C. Guelich
Explosives Co. v. Zoning Hearing Board of Mifflin Township, 105
Pa. Cmwlth. 232, 236, 523 A.2d 1208, 1211 (1987) (holding that
ordinance did not exclude storage of explosives when warehousing
and storage facilities were permitted in industrial districts,
even though Township may not have sufficient space in industrial
districts to meet all state and federal requirements pertaining
to the storage of explosives).
Second, Lower Yoder's ordinance does not amount to a de facto
exclusion of communications towers. In order to overcome the
presumption of Ordinance No. 77's constitutionality, APT must
show that the ordinance "effectively excludes the construction of
any communications towers throughout the Township." Penn
Township, 196 F.3d at 476. In other words, to succeed on its
exclusionary zoning claim, APT must prove that "no
telecommunications provider, including itself, could build a
functional tower" in Lower Yoder's L district. Id. at 476.
"While APT claims that its evidence did just that, [my] review of
the record indicates that it did not." Id. at 477.
APT's only evidence on this issue comes from the affidavit of
Patrick Tuttle, the radio frequency engineer for APT. Although
Mr. Tuttle states that "the L District is not a suitable area for
a functional communications tower for APT," dkt. no. 22, ¶ 16, he
does not provide sufficient proof about whether other service
providers could build in the L district. First, Mr. Tuttle states
that the district is "unlikely to be suitable for any wireless
provider which seeks to provide coverage on the major roadways in
the area." Id. (emphasis added). Second, he states that
"[g]iven the general technical requirements for other wireless
systems, a communications tower in the L District would not
provide coverage on Routes 56 and 271 for other wireless
systems." Id. ¶ 20. Such general statements about other
providers are insufficient to meet APT's "heavy burden" to rebut
the presumption of Ordinance No. 77's constitutionality. Penn
Township, 196 F.3d at 476. As the statements themselves show,
Mr. Tuttle is not even sure about the capability of other
providers because he tempers his first statement with the word
"unlikely." The Third Circuit has cautioned that "an affidavit
that is essentially conclusory and lacking in specific facts is
inadequate" to create a genuine issue of material fact on a
summary judgment motion. Maldonado, 757 F.2d at 51. I find that
Mr. Tuttle's statements about other providers are lacking in
specificity and, thus, do not constitute sufficient evidence
about whether other providers can build a functional tower in
Lower Yoder's L district.
Indeed, Mr. Tuttle's attempt to make general, unsupported,
statements about what other providers can and cannot do is
completely at odds with the undisputed evidence presented by ATP
at the June 30th hearing of this matter. At that hearing, Mr.
Tuttle argued that every wireless provider is different. "Each
system is kind of like a puzzle. What may work for one company
may not necessarily work for another." (Tr. at 73); see also
dkt. no. 22, ¶ 13 ("[c]ellular systems also differ from one
another. . . . because each system is designed differently,
different systems may require sites in different locations. . .
In addition, at the hearing, counsel for APT stated that
"[d]ifferent systems have different sites in different areas. So
what works for one company, depending on where its other sites
are, because all sites have to work together, won't necessarily
work for another company." (Tr. at 74-75). To prove that Lower
Yoder's ordinance is exclusionary, APT must account for these
differences. It must show that "other providers could not use any
of [the L district land] to build a tower that would functionally
meet their systems' needs." Penn Township, 196 F.3d at 477. At
a minimum, this requires some showing about the coverage needs
and technological capabilities of different providers. Without
such evidence, APT cannot meet its burden of proving that
Ordinance No.77 is exclusionary.
Penn Township is, once again, controlling. In that case, APT
claimed that Penn Township's zoning ordinance was exclusionary
because it restricted communications towers to the M or light
industrial districts. Although APT had presented evidence that it
could not build a functional tower in the M district, the Third
Circuit found that APT failed to produce evidence about whether
other providers could build in the M districts. Penn Township,
196 F.3d at 476.
It is simply not true, as APT maintains, that the
record contains evidence that all wireless providers'
systems suffer from the same gap and are prevented
from filling their gaps by Ordinance No. 109. Indeed,
APT's counsel told the ZHB just the opposite. In
response to a question regarding other providers'
needs to locate in the Township, APT's counsel
. . . . All systems are different. Each company
does not necessarily have to have a facility in
each municipality. Because of the system difference
among the carriers, where APT may have a facility
Sprint doesn't. There could possibly be a facility
that AT & T needs but that APT does not require.
But, again, simply because there are different
carriers who have licenses for the same areas, it
does not mean that each one will require a tower at
the same spot.
The fact that the design APT has chosen for its
system enables it to erect the tower that it wishes
to build only on a relatively small portion of the
land in the M Districts does not make Ordinance 109
exclusionary. Pennsylvania's rule against
exclusionary zoning does not impose upon a township
the duty to assure that all providers, regardless of
the systems they have chosen to construct, will have
a suitable site for a functioning tower within the
Township. To be exclusionary, the ordinance must
effectively foreclose not only APT's use, but all
Id. at 476-77 (emphasis added). Because APT failed to produce
evidence about whether other providers could build a tower in the
M district that would meet their needs, the Third Circuit held
that Penn Township's ordinance was not exclusionary. Id. at
In this case, APT suffers from the same lack of proof that it
did in Penn Township. "Pennsylvania law imposed a substantial
burden upon APT to rebut Ordinance [No. 77's] presumption of
constitutionality." Id. at 478. By failing to offer specific
proof concerning other providers, APT failed to meet its burden.
I will grant judgment in favor of the defendants on this claim.
APT's final claims are under the United States Constitution.
Applying my earlier analysis to these claims, I quickly dispose
of both of them.
APT first alleges that the defendants violated its substantive
rights under the 14th Amendment. A plaintiff making a substantive
due process claim has the burden of showing that the decision of
the local zoning board was "arbitrary or irrational." DeBlasio
v. Zoning Bd. of Adj., 53 F.3d 592, 601 (3d Cir. 1995); see
also Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023,
1035 (3d Cir. 1987). Based on my analysis above, I conclude that
the Township's decision denying a variance to APT was not
arbitrary or irrational. The Township had a legitimate reason for
its decision. Simply put, APT did not produce sufficient evidence
in front of the ZHB to merit the granting of its request for a
variance. Because the undisputed evidence shows that the
defendants' decision to deny APT's request for a variance was
wholly reasonable, I will grant judgment in favor of the
defendants on this claim.
APT next claims that the defendants violated its right to equal
protection under the 14th Amendment. Such a claim is made out
when plaintiff proves that it was treated differently from
similarly situated landowners without any reasonable basis. See
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Anselma Station v.
Pennoni Assocs., 654 A.2d 608, 616 (Pa.Cmwlth. 1995); Andrews
v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). In
other words, this claim is nearly identical to the TCA's
requirement that municipalities not "unreasonably discriminate
among providers of functionally equivalent services."
47 U.S.C. § 332(c)(7)(B)(i)(I). I adhere to my previous analysis on this
issue, see supra IIIB, and will grant judgment in favor of the
defendants on this claim.
What the Third Circuit noted in Penn Township is true in this
case as well. "The record is remarkable not for what it contains,
but for what it does not." Penn Township, 196 F.3d at 478. Time
and again, APT has failed to produce any evidence on essential
elements upon which it bears the ultimate burden of proof at
trial. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. In
accordance with the foregoing reasons and stated authorities, I
will grant judgment in favor of the defendants, Lower Yoder
Township and its Zoning Hearing Board, on all counts in APT's
amended complaint. Dkt. no. 12.