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Liberty Towers, LLC v. Zoning Hearing Board of the Township Lower Makefield

September 28, 2010

LIBERTY TOWERS, LLC. PLAINTIFF,
v.
ZONING HEARING BOARD OF THE TOWNSHIP LOWER MAKEFIELD, BUCKS COUNTY, PENNSYLVANIA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM OPINION

Presently before the Court is Defendant Lower Makefield Township's Motion to Dismiss (Doc. 9); Plaintiff Liberty Towers, LLC's Response in Opposition thereto (Doc. 12); Defendant Nathan M. Edelstein's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 11) and Plaintiff Liberty Towers, LLC's Response in Opposition thereto (Doc. 13). For the reasons set forth below, this Court denies both motions.

FACTUAL BACKGROUND*fn1

Plaintiff Liberty Towers, LLC ("Liberty"or "Liberty Towers") asserts a claim against Defendant Zoning Hearing Board of the Township of Lower Makefield, Bucks County, Pennsylvania ("the Zoning Hearing Board") pursuant to the Telecommunications Act of 1996, 47 U.S.C.§ 332(c) (2010) ("the TCA"or "the Act") for denying its application for a use variance contrary to the Act's requirements. Liberty Towers is a limited liability company that constructs and operates wireless telecommunication facilities. The Zoning Hearing Board is a political subdivision of Bucks County, Pennsylvania that has the authority to either approve or deny applications for use variances to construct wireless communication facilities.

Pursuant to section 200-28A of Lower Makefield Township's zoning ordinance, a variance is required to permit certain areas, including the area selected by Plaintiff, to be utilized as a wireless telecommunication facility. In September 2009, Liberty Towers submitted an application to the Zoning Hearing Board requesting a use variance to construct and operate a wireless telecommunication facility on the property known as the Brookside Swim Club. (Compl. ¶ 6). Both Sprint and T-Mobile sought to install communication antennas on the proposed facility. (Compl. ¶ 7). Pursuant to licenses granted by the Federal Communications Commission ("FCC"), Sprint and T-Mobile are authorized to provide wireless communication services in Lower Makefield Township. (Compl. ¶ 8). These licenses require both Sprint and T-Mobile to provide wireless communication services at a level sufficient to offer adequate service to the population within Lower Makefield Township. (Compl. ¶ 11). Plaintiff alleges that both companies have identified an area in Lower Makefield Township where there is a significant gap in service. (Compl. ¶15).

The Zoning Hearing Board held public hearings to review Liberty Tower's application on October 6, 2009, November 2, 2009, January 13, 2010 and February 16, 2010. (Compl. ¶ 21). During these hearings, Liberty Towers presented evidence demonstrating that both Sprint and T-Mobile have significant gaps in wireless communication service in Lower Makefield Township. (Compl. ¶ 22). Liberty Towers also presented evidence demonstrating that the construction of the proposed wireless telecommunication facility would allow both Sprint and T-Mobile to provide adequate service to the residents of Lower Makefield Township pursuant to their FCC licensing requirements. (Compl. ¶ 22). On February 16, 2010, the Zoning Hearing Board issued a written decision and order denying Liberty Tower's application for the use variance. (Compl. ¶ 24).

On April 15, 2010, Liberty Towers appealed the Zoning Hearing Board's order denying its application for a variance in the Bucks County Court of Common Pleas. At this same time, Liberty Towers commenced an action in this Court, asserting that the denial of its application for a use variance was a violation of the TCA. Count I of Plaintiff's Complaint alleges that the Zoning Hearing Board's denial of Liberty Tower's application had the effect of prohibiting the provision of personal wireless service, contrary to the requirements of 42 U.S.C. § 332(c)(7)(B)(i)(II). (Compl. ¶ 31). Count II of Plaintiff's Complaint alleges that the Zoning Hearing Board violated the requirement of 47 U.S.C.§ 332(c)(7)(B)(iii), requiring that a denial of a request to construct personal wireless services facilities be in writing and supported by substantial evidence contained in a written record. (Compl. ¶ 34)

On May 6, 2010, Nathan Edelstein filed a Motion to Intervene (Doc. 3) as a defendant in the instant action. On May 11, 2010, Lauren Templeton filed a Motion to Intervene (Doc. 4) as a defendant in this case. Lastly, on May 12, 2010, Lower Makefield Township filed a Motion to Intervene (Doc. 5) as a defendant in this case. This Court issued an Order on June 12, 2010 (Doc. 8) granting each of these motions. Defendants have moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Defendants argue that Plaintiff lacks standing to sue under the TCA. Alternatively, Defendants argue that this Court lacks jurisdiction because the claims do not present a case or controversy under Article III of the United States Constitution. The Court now addresses the pending motions.

LEGAL STANDARD

A. Motion to Dismiss Pursuant to Federal Rule 12(b)(1)

On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), dismissal is warranted where a court lacks subject matter jurisdiction over a case. Rule 12(b)(1) motions are either facial or factual challenges. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). A facial attack concerns the sufficiency of the pleadings, whereas a factual attack is a dispute over the existence of certain jurisdictional facts alleged by the plaintiff. Id. (citing United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007)). "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). By contrast, when a defendant attacks subject matter jurisdiction "in fact," the court is "free to weigh the evidence and satisfy itself whether it has power to hear the case." Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). In reviewing a factual attack, the court is not confined to the allegations of the complaint. Cestonaro v. United States, 211 F.3d 749, 754 (3d Cir. 2000). No presumption of truthfulness attaches to the plaintiff's allegations, "and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group Int'l, 227 F.3d at 69 (citation omitted). The plaintiff bears the burden of persuasion regardless of whether the challenge is facial or factual. Henderson v. Nationwide Mut. Ins. Co., 169 F. Supp. 2d 365, 367-368 (E.D. Pa. 2001).

B. Motion to Dismiss Pursuant to Federal Rule 12(b)(6)

On a motion to dismiss for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). On the contrary, "[t]he pleader is required to 'set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakewicz, 1 F.3d 176, 183 (3d Cir. ...


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