United States District Court, Western District of Pennsylvania
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.
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
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 facilities. On
February 12, 2001, this court held a non-jury trial to address the
II. CONCLUSIONS OF LAW
A. The Ripeness of BAM's Challenge to the Zoning Board's
Article III, section 2 of the United States Constitution requires an
actual case or controversy for a federal court to have jurisdiction. One
aspect of a determination of the existence of a case or controversy is
whether the matter is ripe for resolution.*fn2
The ripeness doctrine prevents "`courts, through the avoidance of
premature adjudication, from entangling themselves in abstract
disagreements.'" Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127,
147 (3d Cir. 2000) (quoting Artway v. Attorney Gen. of N.J., 81 F.3d 1235,
1246-47 (3d Cir. 1996)). To determine whether a claim is ripe, a court
must weigh the hardship to the parties of withholding court consideration
and the fitness of the issues for judicial review. Planned
Parenthood, 220 F.3d at 148; Pic-A-State, 76 F.3d at 1298;
Presbytery of N.J. of the Orthodox Presbyterian Church
v. Florio, 40 F.3d 1454, 1462-63 (3d Cir. 1994). In the declaratory
judgment context, however, courts in the Third Circuit refine the
ripeness test because declaratory judgments are typically sought before a
completed injury has occurred. Pic-A-State, 76 F.3d at 1298. An example
of such a situation is when a party seeks the preenforcement review of a
statute or regulation. Presbytery of N.J., 40 F.3d at 1463. This
refining of the ripeness test involves a three-fold rubric: (1) the
adversity of the parties' interests; (2) the probable conclusiveness of a
judgment; and (3) the practical utility to the parties of rendering a
judgment. NE Hub Partners, L.P., v. CNG Trans. Corp., 2001 WL 76280 at
*7 (3d Cir. Jan. 31, 2001).
The first prong of the test, the adversity of the parties' interests,
involves an analysis of whether the parties are so situated that they
have adverse legal interests sufficient for there to be an actual
controversy. Presbytery of N.J., 40 F.3d at 1463. Although a party
seeking review need not have suffered a completed harm to establish
adversity of interest, it is necessary that there be a substantial threat
of real harm and that the threat must remain real and immediate
throughout the course of the litigation. Id. Interests are also
sufficiently adverse even if a government party has not enforced an
ordinance or law against a party if the ordinance or law has caused the
party to suffer economic harm and the party's further attempt to pursue
its business would result in the risk of serious penalties. Pic-A-State,
76 F.3d at 1298-99. See also NE Hub, 2001 WL 76280 at *7 (citing cases
and noting that courts have found insufficient adversity for ripeness
where the chance of the government defendant enforcing its laws against
plaintiff is but a contingency).
The second prong of the ripeness test is the conclusiveness of a
judgment which "is a short-hand term for whether a declaratory judgment
definitively would decide the parties' rights." NE Hub, 2001 WL 76280 at
*8. In addition, the consideration of conclusiveness addresses the
extent to which further factual development of the case would facilitate
decision, so as to avoid the court issuing an advisory opinion, or
whether the question presented is predominantly legal. Id.
The third prong of the ripeness test is the practical utility
of the court issuing an opinion. That is, the court must consider
"`whether the parties' plans of action are likely to be affected
by a declaratory judgment.'" Pic-A-State, 76 F.3d at 1300 (quoting
Step-Saver Data Sys.,Inc. v. Wyse Tech., 912 F.2d 643, 649 n. 9 (3d
Cir. 1990)). The court should also consider the hardship to the
parties of withholding judgment. NE Hub, 2001 WL 76280 at *9.
Applying each of these prongs to the case at bar, it is readily
apparent that BAM cannot meet all three essential prongs of the ripeness
Based on the parties' pleadings and the evidence presented at trial,
the court concludes that the parties' interests are insufficiently
adverse to present an actual controversy and BAM's claims do not satisfy
the first prong. For example, BAM has not applied for a permit to
construct modifications to its tower and related facilities. Such a
permit would undoubtedly detail exactly what it intends to construct and
how, if at all, these plans may be adverse to the Zoning Board's
position, i.e., its ordinance. In addition, the testimony from BAM's
witnesses at trial addressed only issues of potential modifications of
the tower facility. No testimony, however, concerned concrete,
specific, imminent plans to modify the Butler township tower.
Accordingly, the court cannot conclude that BAM's position is necessarily
adverse to the Zoning Board's position, i.e., the two Zoning Board
provisions stated in full above.
Applying the facts to the second prong of the ripeness test,
conclusiveness, it is clear that BAM has not, and cannot, present enough
concrete facts at this time to permit the court to avoid issuing an
advisory opinion. That is, the court cannot rule on whether or not BAM's
purported plans to modify their tower violate the Butler Township
provisions because BAM has not presented enough specific facts about its
plans and cannot say for certain that its plans for modification and
expansion of the tower will ever occur.
Accordingly, if this court were
to issue an opinion, the opinion would not conclusively decide the
parties' rights. Rather, it would amount to an advisory opinion on a
hypothetical set of facts that may or may not ever come to pass.*fn4
Finally, applying the third prong of the ripeness test, practical
utility, to the facts, it becomes apparent that this prong, unlike the
first two, does weigh in favor of ripeness. For instance, the parties'
plans of action would be affected by a declaratory judgment because if the
court were to rule, BAM, for example, could move ahead and make more
definite plans for modifying the tower without fear of offending the
Zoning Board's two conditions. Similarly, a decision in the Zoning
Board's favor would permit the township to move ahead with other planning
issues secure in the knowledge that BAM or others could not construct
telecommunications towers in contravention of the Zoning Board's wishes.
Based on the analysis of all three prongs, and keeping in mind that all
three prongs of the ripeness test must weigh in favor of ripeness, the
court concludes that BAM's challenge to the propriety of the Zoning
Board's imposition of the two new conditions is not ripe.*fn5
B. BAM's Ability under Pennsylvania Law to Challenge
Zoning Board's Conditions in the Future
While BAM's challenge to the Zoning Board's conditions is not ripe, BAM
is concerned that it must challenge the Zoning Board's decision now or be
precluded under Pennsylvania municipal law from challenging the decision
in the future. The court, however, concludes that despite Pennsylvania
law, the FTA's creation of a cause of action permits BAM to challenge the
ruling in the future if or when it is ripe.
Pennsylvania law is well settled that a party that seeks a review of a
zoning board's decision that was not immediately appealed by the party
must establish that there has been a subsequent substantial change in
conditions incident to the land itself before the party may challenge the
ruling. Filanowski v. Zoning Bd. of Adjustment,
266 A.2d 670, 672 (Pa.
1970). If the party has not established this, then the challenge to the
zoning board decision is res judicata based on the earlier, unappealed
zoning board decision. Id. See also Gazebo v. Zoning Bd. of Adjustment
of the City of Pittsburgh, 535 A.2d 214, 218 (Pa.Commw.Ct. 1987) (citing
Filanowski for same propositions); Mobil Oil Corp. v. Zoning Hearing Bd.
of Tredyffrin Twp., 515 A.2d 78, 80 (Pa. Commw. 1986) (same); Amoco
Oil Co. v. Zoning Hearing Bd. of Middletown Twp., 463 A.2d 103, 104
In contrast to Pennsylvania law, though, the FTA explicitly creates a
cause of action for appeal of a final action of a state or local
government without reference to any need for a change in conditions
incident to the land. This cause of action arises at any time when the
state's or local government's action is inconsistent with the limitations
created by 42 U.S.C. § 332 (c)(7)(B)(i)-(v) on their power for the
regulation of the placement, construction, and modification of personal
wireless service facilities. The relevant section of the FTA creating
the cause of action states:
(v) Any person adversely affected by any final action or
failure to act by a State or local government or any
instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action or
failure to act, commence an action in any court of
competent jurisdiction. The court shall hear and decide
such action on an expedited basis. Any person adversely
affected by an act or failure to act by a State or local
government or any instrumentality thereof that is
inconsistent with clause (iv) may petition the
Commission for relief.
47 U.S.C. § 332(c)(7)(B)(v).
Applying the plain text of the statute to BAM's situation, when or if
BAM's claim becomes ripe through, for example, a final denial of a permit
request, it is clear that BAM would have a cause of action under the
FTA. Pennsylvania zoning law simply cannot abrogate this cause of action
created by federal statute for the specific instance when the
construction or modification of telecommunications towers is at issue.
See, e.g., Lucas v. Planning Bd. of the Town of LaGrange, 7 F. Supp.2d 310,
321 (S.D.N.Y. 1998) (collecting cases and stating that "[a]lthough the
[Federal] Telecommunications Act does not completely preempt the
authority of state and local governments to make decisions regarding the
placement of wireless communications facilities within their borders, it
quite clearly preempts any state regulations which conflict with its
provisions." (Internal quotations and citations omitted)); Paging, Inc.
v. Board of Zoning Appeals for the County of Montgomery, 957 F. Supp. 805,
808 (W.D.Va. 1997) ("Thus in passing the [Federal Telecommunications]
Act, Congress has explicitly held that under limited circumstances the
federal interest in wireless communications takes priority over state
C. The Issue of Preemption of Hawk's Claims Based on
Having resolved the jurisdictional issues surrounding
BAM's claims, the court now turns to Hawk's claims.
Hawk brought claims against the Zoning Board in the
Butler County Court of Common Pleas appealing the Zoning
Board's removal of the 1990 restrictions on BAM. BAM
removed these claims to federal court on the basis that
BAM believes that Hawk's complaint concerns issues of
federal law, primarily the FTA. For the reasons that
follow, the court disagrees and remands Hawk's complaint
to the Butler County Court of Common Pleas.
In a case that involves nondiverse parties, the
district court is required to determine the existence or
nonexistence of a federal question in a removed case
when a motion to remand is made by one of the parties or
on its own when not so raised.
When parties dispute whether subject matter
jurisdiction exists on removal, defendant bears the
burden to show that removal was proper. Columbia Gas
Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d
Cir. 1995). For both removal and original
jurisdiction, the federal question must appear on the
face of the complaint unaided by the answer,
counterclaim or petition for removal. Gully v. First
National Bank, 299 U.S. 109, 113 (1936). If it does not
appear there, "no statement in the petition for removal
. . . can supply that want." Tennessee v. Union &
Planters' Bank, 152 U.S. 454, 464 (1894). Also, the
fact that defendant advances a defense based on federal
law does not create federal jurisdiction. Krashna v.
Oliver Realty, Inc., 895 F.2d 111, 113 (3d Cir. 1990)
("It follows that an action may not be removed on the
basis of a federal defense . . . "). These principles
are well established and are referred to as the
"well-pleaded complaint rule." Moreover, the removal
statutes "are to be strictly construed against removal
and all doubts should be resolved in favor of remand."
Steel Valley Auth. v. Union Switch and Signal Div.,
809 F.2d 1006, 1010 (3d Cir. 1987).
One narrow exception to the well pleaded complaint
rule is for matters that Congress has so completely
preempted that any civil complaint that falls within the
category is necessarily federal in character. Lazorko
v. Pennsylvania Hosp., 237 F.3d 242, 248 (3d Cir.
2000). Complete preemption creates federal jurisdiction
even though no federal question appears on the face of
the complaint. Id. The Supreme Court, however, has
narrowly interpreted the scope of the complete
preemption doctrine. Aronson v. Sprint Spectrum, L.P.,
90 F. Supp.2d 662, 664 (W.D.Pa. 2000). For example,
since 1968, the Court has found complete preemption in
only two instances: (1) claims alleging a breach of a
collective bargaining agreement that fall under §
301 of the Labor Management Relations Act,
29 U.S.C. § 185, and (2) claims for benefits or enforcement of
rights under the Employee Retirement Income Security
Act, 29 U.S.C. § 1132(a)(1)(B). Id.*fn6
Recognizing this limited basis for complete
preemption, the Third Circuit has fashioned a two-prong
test to determine the applicability of the complete
preemption doctrine. Id. at 665 (citing Railway Labor
Exs. Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936,
942 (3d Cir. 1988)). First, the purported preempting
statute must contain civil enforcement provisions within
the scope of which the plaintiff's state claim falls.
Id. If this is satisfied, a district court then must
determine whether there is a clear indication of a
Congressional intention to permit removal despite the
plaintiff's exclusive reliance on state law. Id.
With these legal principles in mind, the court assesses
Hawk's claims for federal jurisdiction.
The court begins by assessing whether BAM has
established that Hawk's complaint satisfies the well
pleaded complaint rule. That is, whether a federal
appears on the face of Hawk's Butler County
complaint, unaided by the answer, counterclaim or
petition for removal.
After closely reviewing Hawk's Butler County
complaint, the court concludes that BAM has not, and
cannot, establish that Hawk's complaint, on it face,
states a federal question. Rather, Hawk's complaint
involves the narrow issue of an appeal under
Pennsylvania law of the Zoning Board's decision to
remove the 1990 conditions on BAM's construction of
telecommunications facilities. Hawk's complaint
primarily argues that the Zoning Board's 1997 decision to
remove the 1990 conditions is somehow res judicata based
on a 1992 ruling of the Pennsylvania Commonwealth
Court. This argument, of course, states no federal
While it is true that the consideration of the
propriety of the Zoning Board's actions and BAM's
defenses may involve the FTA and/or other federal law,
plaintiff has not stated a cause of action based on a
federal question. Note too that even "[a] substantial
disputed federal question . . . is insufficient by
itself to confer jurisdiction. Thus, where Plaintiff's
causes of action are created by state law, and no
disputed question of federal law is a necessary element
of one of those state law claims, there is no federal
jurisdiction over the matter." Bauchelle v. AT & T
Corp., 989 F. Supp. 636, 641 (D.N.J. 1997).
Next, the court addresses whether a narrow exception
to the well pleaded complaint rule, complete
preemption, applies to Hawk's claims based on the FTA.
The court begins its analysis by applying the first
prong to Hawk's claims. This prong involves determining
whether the FTA contains civil enforcement provisions
within the scope of which Hawk's state law claims fall.
As discussed, Hawk's state court claims involve an
appeal from the Zoning Board's 1997 decision to remove
the 1990 conditions for construction imposed on BAM. In
her appeal to the Butler County Court of Common Pleas,
Hawk argues primarily that the Zoning Board's 1997
decision is res judicata. She does not assert any
federal question or causes of action.
Comparing this state law cause of action to the FTA,
it is clear that the FTA contains no civil enforcement
provisions that subsume Hawk's state law claims. That
is, nothing in the FTA addresses appeals from zoning
boards in these circumstances. In fact, the parties
agree that the relevant FTA provisions for this case are
47 U.S.C. § 332(c)(7)(A)-(B), provisions regarding
the interplay of state, local, and federal government
authority for regulation of the placement,
construction, and modification of personal wireless
service facilities. Nothing in those provisions creates
causes of action in federal court for appeals from local
zoning boards. Accordingly, the first prong of the
complete preemption test weighs against the FTA having
Under the two-prong complete preemption test, if the
first prong is not satisfied, the court need not go
further with its analysis. See Aronson, 90 F. Supp.2d
at 665 (noting that a court should only move to the
second step of the two-prong complete preemption test if
the first prong is satisfied). Nonetheless, the court
will undertake a brief analysis of the second prong
because the case law addressing the issue is so
The district courts in this circuit have addressed the
second prong of the complete preemption argument as it
relates to the Federal Communications Act*fn7 on
multiple occasions and have uniformly held that
Congressional intent for removal, and therefore complete
preemption, does not exist. See Aronson, 90 F. Supp. d
at 667-668; Bauchelle, 989 F. Supp at 646; Sanderson,
Thompson, Ratledge & Zimny, 958 F. Supp. 947, 958
(D.Del. 1997); DeCastro v. AWACS, Inc., 935 F. Supp. 541,
551-52 (D.N.J. 1996); Weinberg v. Sprint Corp., 165
F.R.D. 431, 439-40 (D.N.J. 1996). Accord Guglielmo v.
Worldcom, Inc., 2000 WL 1507426 at *4 (D.N.H. July 27,
2000)(collecting cases from many jurisdictions noting
that the Act does not satisfy the second prong of the
complete preemption test). For example, courts note no
textual basis for removal and nothing in the Act's
legislative history showing Congressional intent for
removal. See, e.g. Aronson, 90 F. Supp.2d at 668.
Moreover, the saving clause of the Act, section 414,
provides that "[n]othing in this chapter contained shall
in any way abridge or alter the remedies now existing at
common law or by statute, but the provisions of this
chapter are in addition to such remedies." Id.
(emphasis supplied by court in Aronson case).
Consequently, the claims in the case at bar based on the
FTA do not meet the second prong of the complete
Accordingly, for the foregoing reasons, the court
dismisses BAM's claims for lack of ripeness. The court
also remands Hawk's claims to the Butler County Court of
Common Pleas. An appropriate order follows.
O R D E R
AND NOW, this ___ day of March, 2001, IT IS HEREBY
ORDERED that, after a bench trial, Plaintiff Bell
Atlantic Mobile, Inc.'s claims are DISMISSED. Plaintiff
Kathleen P. Hawk's claims are REMANDED to the Butler
County Court of Common Pleas. The Clerk of Court is
directed to mark this case closed.