The opinion of the court was delivered by: Jan E. DuBOIS, United States District Judge.
Presently before the Court are American Cellular's Motion for Summary
Judgment (Document No. 7, filed June 4, 2001), and Motion for Summary
Judgment of Defendants Upper Dublin Township and Upper Dublin Township
Zoning Hearing Board (Document No. 8, filed July 6, 2001). As
memorialized in the Court's May 11, 2001, Scheduling Order, the parties
agree "that the case could be resolved by the filing of a motion or
motions for summary judgment." For the reasons stated in this
Memorandum, the Court grants American Cellular's Motion and denies the
Motion of Upper Dublin Township and Upper Dublin Township Zoning Hearing
In this section, the Court sets forth a summary of the facts and
procedural history concerning American Cellular's application to the Board
for zoning variances. The summary is derived from the record of the
January 29, 2001, hearing before the Board ("R."), the exhibits
introduced at that hearing, and the Board's "Findings of Fact, Opinion
and Order" ("Opinion"), all of which are appended to either American
Cellular's Motion or defendants' Motion.*fn1 Additional facts are set
forth in the Court's analysis of American Cellular's substantive claims.
See infra § IV.A.1.
As a commercial provider of wireless telephone services, American
Cellular conducts regular examinations of the strength of its cellular
signal. R. at 92. In one such series of examinations, American Cellular
identified the Maple Glen section of Upper Dublin Township as an area in
which its signal was sufficiently inadequate so as to prevent its
subscribers in that area from sustaining uninterrupted cellular telephone
calls.*fn2 R. at 92-98. Maple Glen is defined by the Township boundary
lines to the west and north, Susquehanna Road to the south, and
Dreshertown Road to the east. R. at 189-90. To remedy its deficient
cellular service in Maple Glen, American Cellular investigated various
properties in that area for the construction of a new cell site containing
antennas for receiving and transmitting signals to its subscribers. R. at
15-16; Ex. A-1.
On July 24, 2000, American Cellular entered into a License Agreement,
Ex. A-1, with Mario DiFabio allowing American Cellular to use DiFabio's
property at 633 Welsh Road for the construction of a cell
site. R. at 16.
DiFabio's property is located in the commercial center of Maple Glen
— the triangle of land surrounded by Welsh Road, Limekiln Pike, and
Norristown Road. R. at 190; see also Ex. A-15 (map portraying, inter
alia, Maple Glen section of Upper Dublin Township). The License Agreement
permitted American Cellular to construct behind the one-story building on
DiFabio's property a 225-square-foot compound for sheltering radio and
electronic equipment, and an eighty-foot monopole. R. at 25-26; Ex. A-1,
Lease Exhibit "B."
American Cellular's plans for the cell site incorporated design
techniques intended to "stealth" the site and reduce its visual
obtrusiveness. R. at 25-26. Specifically, American Cellular planned to
use a slender rust-colored pole that would blend into the undeveloped
woods abutting the rear of the DiFabio property. R. at 25. American
Cellular was, alternatively, willing to use a "pine tree pole." R. at
26. The site's antennas at the top of the pole were not to be supported
by a triangular platform, but, rather, were designed to be flush with the
pole. R. at 25. As for the equipment shelter, American Cellular planned to
screen it with a chain-link fence which, in turn, would be screened by
landscaping. R. at 26.
The DiFabio property lies in an area of the Township zoned "SC," for a
"Shopping Center" district. R. at 23; Zoning Ordinance § 255-8.*fn3
There is a building on the property which houses a tailor shop and a
barber shop. R. at 16. Although American Cellular's proposed cell site is
a permitted use in the S.C. district under § 255-30.1 of the
Ordinance, which governs "[c]ellular communications antennas," its
proposal conflicted with the Ordinance's dimensional requirements and
required a variance. Specifically, American Cellular's planned structures
extended to within sixteen feet of the rear boundary of the DiFabio
property, Ex. A-4, and violated the Zoning Ordinance's required forty-foot
setback for cellular communications antennas. Zoning Ordinance §
255-30.1.D(2)(c). In planning the construction of the cell site, American
Cellular was aware that it was not in compliance with the setback
requirement; it believed, however, that the planned location was the most
appropriate means of complying with another provision of the Zoning
Ordinance, the requirement in § 255-30.1.B(6) that "[a]ll wireless
communications facilities shall be of stealth design." R. at 24, 50.
In light of the setback requirement, on September 13, 2000, James R.
Rodgers, on behalf of American Cellular, submitted an Application to the
Board seeking an "Interpretation of Stealth Provisions" and a variance
from the setback requirements. Ex. B at 1. On a section of the
pre-printed Application reading "I/We believe that the Zoning Board should
approve this request because," Rodgers handwrote as follows:
1. American Cellular Network Corp. d/b/a
CellularOne*fn4 is required by the FCC to
provide service in its licensed area. The Maple
Glen area of Upper Dublin does not have
CellularOne service, nor does it roam on any
other service provider's system.
Ex. B at 2 (emphasis supplied).
In response to the Application, on October 17, 2000, Township Director
of Code Enforcement Richard D. Barton sent a letter to counsel for
American Cellular. Ex. A-4. In the letter, Barton informed American
Cellular than an "additional variance" would be required. Specifically,
Barton cited Zoning Ordinance § 255-30.1.B(1), which provides that a
wireless communications facility is not permitted "in a residential
zoning district or within 500 feet thereof." American Cellular's proposed
location, Barton wrote, "is less than 500 feet from the township's MHD
Mobile Home District, which the township considers to be a residential
district." Ex. A-4.
The Mobile Home District referenced in Barton's letter comprises the
undeveloped, wooded lot abutting the rear of the DiFabio property. R. at
186. The entire area zoned as a Mobile Home District is owned by Acme
Markets. Id. When American Cellular executed the License Agreement with
DiFabio, it believed that its planned site would be in compliance with
the 500-foot residential setback rule because it believed "that the
Mobile Home District is technically not classified as a residential
district in the . . . Zoning Code." R. at 23.
Upon receipt of Barton's letter, American Cellular filed an amendment
to its Application "contend[ing] that the Director of Code Enforcement
erred when he classified the MHD — Mobile Home District as a
residential district." Ex. D. As supporting grounds for this argument,
American Cellular stated that "Section 255-8 of the Zoning Code . . .
specifically identifies the zoning districts of A, A-1, A-2, B, and C as
`residential districts,'" but the section "does not include the MHD
— Mobile Home District as a `residential district.'" Id. In the
event that the Board agreed with Barton's conclusion, American Cellular
further amended "its Zoning Hearing Board application to request a
variance from Section 255-30.1(B)(1) to authorize a wireless facility
within 500 feet of a residential district." Id.
On January 29, 2001, American Cellular presented evidence to the Board
in support of (1) its request for a variance from the forty-foot setback
requirement; (2) its argument that Barton incorrectly identified the
Mobile Home District as "residential"; and (3) in the event the Board
rejected its argument as to the classification of the Mobile Home
District, its request for a variance from the 500-foot setback from a
residential district. Additionally, American Cellular presented evidence
in support of its claim that a "significant gap" in cellular service
existed in Maple Glen — evidence that a gap existed not only in
American Cellular's service, but also in the networks of all five other
major cellular providers servicing the Township.
In the action now before the Court, American Cellular argues that the
Board's decisions constituted a violation of the TCA.*fn6 In its first
three arguments, American Cellular argues that none of the Board's three
conclusions were supported by "substantial evidence." As a fourth
argument, American Cellular asserts that the Board's decision had the
effect of prohibiting cellular service by allowing a "significant gap" in
cellular service to persist in the Township. Before addressing American
Cellular's specific arguments, the Court briefly discusses the legal
framework of the TCA.
III. TELECOMMUNICATIONS ACT OF 1996
The TCA has been described as an "overhaul of the federal regulation of
communications companies." Omnipoint Communications Enters. v. Newtown
Township, 219 F.3d 240, 242 (3d Cir. 2000) ("Newtown Township")
(quotation omitted). In enacting the TCA, Congress sought "to create `a
pro-competitive, de-regulatory national policy framework designed to
rapidly accelerate private sector deployment of advanced
telecommunication and information technologies and services to all
Americans by opening all telecommunications markets to competition.'"
Nextel West Corp. v. Unity Township, 282 F.3d 257, 264 n. 6 (3d Cir.
2002) (quoting H.R. Conf. Rep. No. 104-458 at 113 (1996), reprinted in
1996 U.S.C.C.A.N. 124). Although the TCA "expressly preserves the
traditional authority enjoyed by state and local government to regulate
land use and zoning," APT Pittsburgh Ltd. v. Penn Township, 196 F.3d 469,
473 (3d Cir. 1999) ("APT") (citing 47 U.S.C. § 332(c)(7)),*fn7 at
the same time, it places limits on "the ability of local authorities to
regulate and control the expansion of telecommunications technologies" by
allowing courts to "review telecommunication zoning denials more closely
than standard zoning decisions." Newtown Township, 219 F.3d at 242-43.
The limits on local zoning authority are both procedural and substantive
One procedural limitation establishes the quantum of evidence a local
zoning authority must cite in support of a denial with respect to
telecommunications facilities: "Any decision by a State or local
government or instrumentality thereof to deny a request to place,
construct, or modify personal wireless service facilities shall be in
writing and supported by substantial evidence contained in a written
record." 47 U.S.C. § 332(c)(7)(B)(iii). An important substantive
limitation in the TCA covers the quality of wireless service available in
a zoning authority's jurisdiction: "The regulation of the placement,
construction, and modification of personal wireless service facilities by
any State or local government or instrumentality thereof. . . . shall not
prohibit or have the effect of prohibiting the provision of personal
wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). The TCA further
provides that any party "adversely affected" by a local zoning authority's
actions in violation of these provisions "may, within 30 days after such
action or failure to act, commence an action in any court of competent
jurisdiction." 47 U.S.C. § 332(c)(7)(B)(v).
In this case, American Cellular raises arguments under both of the
above limitations of local zoning authority.*fn8 Procedurally, American
Cellular argues that none of the Board's decisions — rejecting
American Cellular's argument that the Mobile Home District is not
"residential" and denying its two requested variances — were
supported by substantial evidence. Substantively, American Cellular
argues that the Board's actions "have the effect of prohibiting the
provision of personal wireless services."
Upon its review of the record and the parties' arguments, the Court
concludes that American Cellular has indeed proven a substantive
violation of the TCA — that the Board's actions "have the effect of
prohibiting the provision of personal wireless services." The Court will
therefore not consider American Cellular's substantial evidence
arguments,*fn9 but, instead, will proceed to a discussion of American
Cellular's "effect of prohibiting" claim.
2. AMERICAN CELLULAR'S "EFFECT OF PROHIBITING" CLAIM
The TCA "does not define what constitutes prohibitive effect." Nextel,
282 F.3d at 265. However, the Third Circuit, in a series of recent
rulings, has established an analytical framework for evaluating whether a
cellular provider has demonstrated a violation of the TCA's "effect of
prohibiting" limitation on local ...