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October 18, 2001


The opinion of the court was delivered by: Rambo, United States District Judge.


Before the court are the parties' crossmotions for summary judgment. The parties have briefed the issues, and the motions are ripe for disposition.

I. Background

This case involves a decision by Defendant Zoning Hearing Board of Fairview Township (the "Zoning Board") denying Plaintiffs' application for approval to erect a wireless communications tower. The following facts are undisputed unless otherwise indicated: Plaintiff Delaware Valley PCS Communications, LLC ("Delaware Valley") is a Delaware limited liability company registered to do business in the Commonwealth of Pennsylvania. Delaware Valley is licensed by the Federal Communications Commission ("FCC") to provide wireless communications service.

Plaintiffs Robert and Diane Schiazza ("Schiazzas") own a 9.4 acre tract of land located at 521 Locust Road in Fairview Township, York County, Pennsylvania. The property in question is located in the Commercial Highway District as designated by the Fairview Township Zoning Ordinance ("Zoning Ordinance"). The Schiazzas entered into a license agreement with Delaware Valley granting the telecommunications company permission to construct a 150 foot tall wireless communication tower on their property. Additionally, Delaware Valley agreed to obtain the necessary zoning approvals. The Schiazzas currently operate a roller skating rink on their property.

According to Plaintiffs, under FCC regulations Delaware Valley is required to provide wireless communications telephone service to its customers. Plaintiffs contend that the proposed tower, therefore, is necessary for Delaware Valley to comply with its FCC license. Defendant, however, contends that the proposed tower is not necessary because Plaintiffs have an application pending on the adjacent property at 520 Locust Road.

On November 21, 2000, Plaintiffs filed an application with the Zoning Board seeking: (1) a special exception, pursuant to § 902.3 of the Zoning Ordinance for the erection of a telecommunications signal facility; (2) a principal use variance, pursuant to § 2001 of the Zoning Ordinance, for the purpose of permitting an additional principal use; and (3) several parking variances. Plaintiffs contend that they also sought, in the alternative, a subdivision. Defendant denies that Plaintiffs ever applied for a subdivision. It is undisputed, however, that Plaintiffs argued that subdivision would be awkward or undesirable as a grounds for its entitlement to the principal use variance.

The Zoning Board held a public hearing on December 21, 2000. At the hearing, Delaware Valley presented evidence that it met the general criteria for the special exception for erection of a telecommunications signal facility. W. Lee Woodmansee, a site consultant for Delaware Valley, testified that he previously submitted an application to Verizon Wireless ("Verizon") to co-locate Delaware Valley's wireless communications antenna on Verizon's already existing tower. That tower is located within one-quarter (1/4) of a mile from Plaintiffs' proposed tower site. In a letter dated November 20, 2000, Verizon denied Plaintiffs' application. Verizon stated that due to a recent transaction with ALLTEL Communications Corporation, Verizon would be unable to authorize the co-location request "at the present time." (Ex. 9.)

Atta Tahmas, a radio frequency expert, also testified at the Zoning Board's hearing. According to Plaintiffs, Tahmas testified that even if Delaware Valley would have been allowed to co-locate on Verizon's tower, there would still be a gap of one-half (1/2) to three-quarters (3/4) of a mile in Delaware Valley's service because the maximum height at which Delaware Valley would be permitted to locate its antenna on the Verizon tower is 110 feet. Furthermore, Plaintiffs' proposed 150 foot tower would close the gap.

In a decision dated February 1, 2001, the Zoning Board denied Plaintiffs' application. In its decision, the Zoning Board cited two primary reasons for its denial. First, Plaintiffs failed to demonstrate their need for a variance from the regulation allowing only one principal use per lot. Second, even if Plaintiffs qualified for the variance, Plaintiffs did not demonstrate that they were entitled to the special exception to the Zoning Ordinance for telecommunications towers.

Under its first reason, the Zoning Board concluded that, according to the Zoning Ordinance, a telecommunications tower is a principal land use. The Schiazzas already had a principal use of their land — a roller skating rink. Under the Zoning Ordinance, no property is entitled to more than one principal use per lot. The Zoning Board may grant variances from this limitation, but only when the applicant demonstrates that the variance is necessary to enable reasonable use of the of the property because there is no possibility that the property can be developed in strict conformity with the Zoning Ordinance. The Zoning Board concluded that Plaintiffs' argument that subdivision would be awkward or undesirable was not sufficient to satisfy its required showing for a variance.

As to its second reason, the Zoning Board held that Plaintiffs' failed to make the required good faith effort to co-locate its antenna on a nearby tower. Therefore, Plaintiffs forfeited their entitlement to the special exception for telecommunication signal facilities. Furthermore, Plaintiffs were not eligible for the special exception because they failed to "demonstrate that the proposed use would be one which would not generate offensive light which would constitute a nuisance to adjoining property owners." (Ex. 4 at p. 9.)

On August 1, 2001, Plaintiffs filed a motion for partial summary judgment. Plaintiffs argue that summary judgment should be granted in their favor on all issues of liability, saving the issue of damages for trial. On Augnst 9, 2001, Defendant filed a motion for summary judgment, seeking judgment as a matter of law in its favor on all issues.

II. Legal Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis which would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249, 106 S.Ct. 2505. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).

Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in the complaint; instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Id.

The standards governing the court's consideration of Federal Rule 56(c) cross-motions are the same as those governing motions for summary judgment, although the court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the non-movant. Raymond Proffitt Found. v. U.S. Envt'l. Protection Agency, 930 F. Supp. 1088, 1096 (E.D.Pa. 1996).

III. Discussion

Plaintiffs' complaint alleges that Defendant violated the TCA by denying Delaware Valley's application to construct the tower on the Schiazzas' property. Specifically, Plaintiffs allege that Defendant's decision violated the TCA in that: (1) it prohibited the provision of wireless services to Delaware Valley's customers; (2) its decision to deny the applications was not based on substantial evidence; and (3) it unreasonably discriminated among functionally equivalent service providers. Additionally, Plaintiffs contend that they are entitled to damages for violation of the TCA under 42 U.S.C. ยง 1983. Finally, Plaintiffs contend that the court should ...

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