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New Cingular Wireless PCS, LLC v. Zoning Hearing Board of Weisenberg Township

September 29, 2009

NEW CINGULAR WIRELESS PCS, LLC T/A CINGULAR WIRELESS PLAINTIFF
v.
ZONING HEARING BOARD OF WEISENBERG TOWNSHIP AND WEISENBERG TOWNSHIP DEFENDANTS



The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge

MEMORANDUM OPINION

New Cingular Wireless PCS, LLC, t/a Cingular Wireless ("AT&T Mobility"),*fn1 is a provider of personal wireless telecommunications services pursuant to licenses issued by the Federal Communications Commission ("FCC"). This litigation involves AT&T Mobility's efforts to construct a one hundred and eighty-foot (180') monopole and associated equipment shed on a leased parcel of property known as Bear Farm ("Bear Farm Property") in Weisenberg Township ("Township") so as to remedy what AT&T Mobility perceives as a significant gap in cellular services for its customers. AT&T Mobility asserts that the Zoning Hearing Board's ("ZHB") denial of its variance application to erect a personal wireless facility in Weisenberg Township resulted in a prohibition of services in violation of 47 U.S.C. §332(c)(7) and is de facto exclusionary in violation of Pennsylvania law.

PROCEDURAL HISTORY*fn2

On November 10, 2004, AT&T Mobility submitted to the ZHB an application seeking zoning relief in the form of a variance in order to erect and operate a monopole telecommunications tower one hundred eighty feet (180') in height, accompanied by an equipment shed, on a leased*fn3 parcel, the Bear Farm Property,*fn4 in the Township. (Amended Complaint ¶ 16.) Approximately one year after its application was initially filed, AT&T Mobility amended the application to challenge the validity of the Weisenberg Township Zoning Ordinance ("Ordinance") on the grounds that it was de facto exclusionary in violation of state law and also in violation of the Telecommunications Act of 1996 ("TCA") by effectively prohibiting the provision of personal wireless services in the Township or substantial parts thereof. (Amended Complaint ¶ 22.)*fn5

The ZHB held public hearings on the application on February 9, 2005, April 13, 2005, November 9, 2005, December 14, 2005, January 11, 2006, February 8, 2006, March 8, 2006, April 5, 2006, May 10, 2006 and May 31, 2006. (Defendant's Trial Exhibit ("Def. Ex.") D-1, Amended Complaint ¶ 21.) During the public hearings before the ZHB, AT&T Mobility presented testimony and evidence alleging a "gap" in wireless services in an area designated in white on Plaintiff's Hearing Exhibit A-14. See Def. Ex. D-3. AT&T Mobility alleged, as it does here, that within the gap, its customers and customers of all other personal wireless providers are unable to rely on their ability to use wireless phones to connect with the land-based telephone network and maintain a connection capable of supporting reasonably uninterrupted communication. AT&T Mobility also alleged, as it does here, that the proposed monopole telecommunications tower would be the least intrusive means of filling said gap. (Amended Complaint ¶ 23.)

At its May 31, 2006 public hearing, the ZHB voted to deny all zoning relief requested as part of AT&T Mobility's application. (Def. Ex. D-1.) The ZHB concluded that AT&T Mobility failed to show the requisite criteria for variance relief as required under applicable law, based upon findings of fact that included the Bear Farm Property's current use and operation being in strict conformance with the Ordinance and the absence of unique physical circumstances or conditions of the Bear Farm Property which prohibited it from being developed in conformity with the provisions of the Ordinance, as well as the finding that placement of a telecommunications tower would alter the essential character of the rural neighborhood. (Def. Ex. D-1.) The ZHB also concluded that AT&T Mobility failed to meet its burden in showing that the Ordinance was de facto exclusionary as applied to wireless telecommunication facilities, based upon findings of fact that included the Ordinance permitting by special exception communication towers in two zoning districts and not prohibiting or having the effect of prohibiting personal wireless service throughout the Township. (Def. Ex. D-1.) In addition, the ZHB concluded that AT&T Mobility failed to meet its burden in proving that the Ordinance violated the TCA, based upon its findings that AT&T Mobility's evidence and testimony failed to identify to what extent, if any, a "significant gap" existed, and whether it was for AT&T Mobility or all wireless providers in the area, as well as AT&T Mobility not providing the least intrusive alternatives to the proposed tower, such as less sensitive site areas, alternate site designs and/or placement elsewhere other than the proposed site. (Def. Ex. D-1.)

AT&T Mobility appealed the decision of the ZHB by the filing of this action on July 5, 2006. (Docket Entry 1.) An Amended Complaint, which was filed on August 2, 2006, asserted the following four causes of action against the Township and ZHB:

Count I: Prohibiting the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II);

Count II: Denial of variance relief in violation of the Pennsylvania Municipalities Planning Code, Section 910.2, 53 P.S. § 10910.2;

Count III: Lack of substantial evidence supporting denial in violation of 47 U.S.C. § 332(c)(7)(B)(iii); and

Count IV: Validity challenge to the Weisenberg Township Zoning Ordinance as de facto exclusionary.

(Docket Entry 6.)

AT&T Mobility submitted a Rule 16 Conference Information Report on January 4, 2007 alleging that Count I (Prohibition of Services Claim) and Count IV (Exclusionary Zoning Claim) of the Amended Complaint should be heard de novo. AT&T Mobility also requested an additional period of discovery with respect to both causes of action in order to allow submission of additional proofs. On February 6, 2007, the Honorable Thomas M. Golden entered an Order allowing a limited period of additional discovery. (Docket Entry 14.)

On February 5, 2008, the Township moved for summary judgment on all counts of the Amended Complaint. (Docket Entry 24.) ZHB joined in the Township's motion for summary judgment. (Docket Entry 26.) By Order dated August 5, 2008, Judge Golden granted the Township's motion for summary judgment as to Counts II (Variance Claim) and III (Substantial Evidence Claim) of the Amended Complaint. (Docket Entry 29.)

On August 20, 2008, having obtained the consent of all parties in this case, Judge Golden ordered that this matter be transferred to this Magistrate Judge to conduct all further proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Docket Entry 30.) A non-jury trial was held before this Court on December 9, 10, 11, and 16, 2008 during which the parties presented evidence as further development of the record.*fn6 (Docket Entries 56-59, 61-64.) On February 3, 2009, counsel presented closings and post-trial argument to the Court. (Docket Entries 67, 69.)

From the testimony at trial, exhibits and other matters of record, including the record before the ...


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