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BELL ATLANTIC MOBILE, INC. v. ZONING BOARD OF BUTLER

March 29, 2001

BELL ATLANTIC MOBILE, INC., PLAINTIFF
v.
THE ZONING BOARD OF BUTLER TOWNSHIP, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Lancaster, United States District Judge.

M E M O R A N D U M

This action is a consolidation of two lawsuits involving issues related to plaintiff Bell Atlantic Mobile's ("BAM") desire to repeal portions of defendant the Zoning Board of Butler Township's ("Zoning Board") 1997 ruling. That ruling placed limitations on the future construction of a tower and related facilities for the operation of a wireless telecommunications network. BAM contends that the limitations violate, inter alia, the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (1996) ("FTA"). The court conducted a bench trial on February 12, 2001. For the reasons that follow, the court concludes that BAM's claims are not ripe for review, and Hawk's claims are not completely pre-empted by the FTA. Accordingly, the court dismisses BAM's claims and remands Hawk's claims to the Butler County Court of Common Pleas.

In accordance with Fed.R.Civ.P. 52, the following constitutes the findings by the court.

I. FINDINGS OF FACT
A. Procedural Background Facts

In the first lawsuit, BAM seeks declaratory relief to redress the alleged deprivation of rights based on, inter alia, violations of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (1996) ("FTA") insofar as the Zoning Board's 1997 ruling placed inappropriate limitations on any future construction of towers and related telecommunications-related facilities.*fn1 Pro se plaintiff Kathleen P. Hawk ("Hawk") eventually intervened in this first lawsuit.

The second lawsuit concerns Hawk's appeal to the Butler County Court of Common Pleas of the Zoning Board's decision to remove the conditions imposed in 1990 on the construction of BAM's tower facilities. BAM intervened as a plaintiff in Hawk's appeal. BAM then removed the Butler County case to federal court.

Thereafter, with BAM's case against the Zoning Board already before this court and Hawk's related Butler County case removed to this court, Hawk moved for the consolidation of both cases. This court consolidated the cases into the present action and heard the parties' positions through a non-jury trial.

B. Substantive Background Facts
BAM is the lessee of property located on West McQuistion Road in Butler Township, Pennsylvania. BAM holds a Federal Communications Commission ("FCC") license for the ownership, construction and operation of a wireless telecommunications network in a region, which includes BAM's leased property, designated as the Pennsylvania Service Area No. 6. BAM's leased property is in close proximity to a residential neighborhood where Hawk lives.
In 1990, BAM applied for Zoning Board approval to construct a tower facility on the property. The Zoning Board approved the application subject to 11 conditions, including conditions limiting total power output and collocation rights. Because of litigation involving the granting of the application, BAM did not begin construction on the tower until 1994.
By 1997, the increased demand for wireless services created capacity problems for BAM and other carriers requesting to use the tower. Accordingly, BAM applied to the Zoning Board to remove several of the 11 conditions that impeded BAM's ability to technologically upgrade its facilities to meet increased demand. After hearing evidence on the issue, the Zoning Board agreed to remove the offending conditions. The Zoning Board, however, added nine new conditions. BAM finds fault with the following two new conditions:
The expansion of the use must not result in any additional buildings or additions to buildings, other than those shown on the currently approved Land Development Plan.
As the tower is located in a residential zone, next to a residential neighborhood, large dish type antennae and other visible additions to the tower structure, other than additional antennae and equipment similar in appearance to those already on the tower, are not approved by this decision.

BAM contends that the Zoning Board's new conditions violate the FTA, the Omnibus Budget Reconciliation Act of 1993, 7 U.S.C. § 5623, and the zoning laws of the Commonwealth of Pennsylvania. The Zoning Board denies that its ruling and conditions violate any laws.

As discussed above, however, this case has another facet. Consolidated plaintiff Hawk, a resident in close proximity to the BAM tower and facilities, alleges that the removal of the 1990 conditions in 1997 was arbitrary, capricious, an abuse of discretion, and error of law. Hawk's primary concern rests upon her fears of the purported environmental effects of radio frequency emissions produced by BAM's ...

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