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BELL ATLANTIC MOBILE, INC. v. ZONING BOARD OF BUTLER
March 29, 2001
BELL ATLANTIC MOBILE, INC., PLAINTIFF
THE ZONING BOARD OF BUTLER TOWNSHIP, DEFENDANTS.
The opinion of the court was delivered by: Gary L. Lancaster, United States District Judge.
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.
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
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
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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