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May 20, 2002


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 Board.


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.

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.
2. Because the property at issue contains commercial improvements, locating the antenna support structure in strict compliance with the ordinance may interfere with the safe and efficient internal traffic circulation. By placing the antenna support structure as indicated on the companion zoning drawings to the rear of the property in close proximity to trees, CellularOne has substantially lessened the visual impact from the proposed installation.

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.

At the conclusion of the hearing, the six-member Board voted unanimously to reject all three components of American Cellular's Application. R. at 224-28. The Board subsequently issued written Findings of Fact and an Opinion. As to the classification of the Mobile Home District, the Board concluded that because "[b]oth by common usage and by definition in the Zoning Ordinance, a mobile home is a residence. . . . a district containing mobile homes is a residential zoning district in the eyes of the Board." Opinion at 5. The Board then stated that it denied both requested variances because (1) the DiFabio property "is in fact being used for its zoned purposes with the existence of two operating business and their associated parking facilities," and (2) American Cellular's evidence that, in some areas of the Township, no more than ninety percent of its subscribers had "satisfactory service," did not amount to a hardship. Opinion at 5-6.*fn5 The Board did not specifically decide whether American Cellular had established a "significant gap" in cellular service, but did state that "[i]t would appear that there is very close to adequate coverage of the Township by some company even by [American Cellular's] standards." Id.

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.


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 in nature.

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.


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 ...

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