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

August 9, 2011

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

The parties have fully briefed cross motions for summary judgment. Presently before the Court is Defendant Nathan M. Edelstein's Motion For Summary Judgment (Doc. 25); Defendant Lauren Templeton's Motion For Summary Judgment (Doc. 27)*fn1 ; Defendant Lower Makefield Township's Motion For Summary Judgment (Doc. 29); Plaintiff Liberty Towers, LLC's Motion For Summary Judgment (Doc. 30); and all Responses in Opposition thereto. (Docs. 31-34) After careful consideration of the parties submissions and exhibits thereto and for the reasons set forth below the Court concludes that the Board's denial of Plaintiff's application for a use variance does not violate the Telecommunications Act. Specifically, the Court finds that (1) the Board's decision was supported by substantial evidence and (2) the Board's decision did not prohibit, or have the effect of prohibiting the provision of wireless services. Accordingly, the Court grants Defendant Lower Makefield Township's Motion For Summary Judgment.

The instant action is an appeal of the Zoning Hearing Board of Lower Makefield Township's denial of Plaintiff's zoning applications, by which Plaintiff was seeking a use variance to construct a wireless communication facility in a R-3M Zoning District, a single family residential district. The issue before the Court is whether the Zoning Hearing Board's denial of Plaintiff's application constitutes a violation of the Telecommunications Act of 1996, 47 U.S.C.§ 332(c) (2010).

I. PROCEDURAL BACKGROUND

Plaintiff, Liberty Towers, LLC ("Liberty"or "Liberty Towers") asserts a claim against Defendant, Zoning Hearing Board of the Township of Lower Makefield ("the Zoning Hearing Board" or "Board") pursuant to the Telecommunications Act of 1996, 47 U.S.C.§ 332(c) (2010) ("the TCA"or "the Act"). Liberty alleges that the Board's denial of Plaintiff's application for a use variance to construct a wireless telecommunication tower constitutes a violation of the TCA because it has the effect of prohibiting the provision of wireless communications service. Additionally, Plaintiff alleges that the Board's denial was not supported by substantial evidence, was arbitrary, capricious and abuse of discretion and thus contrary to the requirements of section 332 (c)(7)(B)(iii) of the Act.

Plaintiff initiated the instant action with the filing of a Complaint on April 15, 2011. (Doc.1) On May 6, 2010, Nathan Edelstein filed a Motion to Intervene as a defendant in the instant action. (Doc. 3) Thereafter, on May 11, 2010, and May 12, 2010, Lauren Templeton and Lower Makefield Township each filed a Motion to Intervene as a defendant in this action. (Docs. 4, 5) By Order entered on June 12, 2010, the Court granted each of the respective motions. (Doc. 8) Defendant Templeton filed an Answer to Plaintiff's Complaint on June 25, 2010. (Doc.10)

In response to Plaintiff's Complaint, Defendant Lower Makefield Township filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12 (b)(6) on June 18, 2010. (Doc. 9). On July 16, 2010, Defendant Edelstein filed a Motion to Dismiss For Lack of Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 11) On June 28, 2010, the Court entered an Order an accompanying memorandum denying the motions. (Docs. 17, 18). After a Rule 16 Conference held on January 4, 2011, the Court issued a Scheduling Order in which it directed the parties to file cross motions for summary judgment. (Docs. 23, 24) The Court now addresses the pending motions.

II. FACTUAL BACKGROUND

Liberty Towers is a limited liability company registered to do business within the Commonwealth of Pennsylvania. (Compl. ¶ 1.) Liberty Towers is in the business of constructing and operating wireless telecommunication facilities. (Compl. ¶ 1.) These facilities are used by Federal Communications Commission ("FCC") licensed providers of wireless services. Defendant, Zoning Hearing Board is a political subdivision of Bucks County, Pennsylvania and is charged with the responsibility of approving or denying applications for use variances to construct wireless communication facilities. Liberty Towers wishes to construct a one-hundred-and-fifty-foot monopole communications tower on the property known as the Brookside Swim Club. (Compl.¶ 6.) The Brookside Swim Club is located in a residential zoning district on Stony Hill Road, Yardley, Pennsylvania.

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 site for a wireless telecommunication facility.*fn2 (Compl. ¶ 19.) Accordingly, on July 14, 2009, Liberty Towers submitted a zoning application to the Zoning Hearing Board requesting a use variance to construct the wireless communications tower on the subject property. (Compl. ¶¶ 6, 20.) In support of its application, Plaintiff averred that both Sprint and T-Mobile seek to install communication antennas on the proposed facility.*fn3 (Compl. ¶ 7.) Pursuant to licenses granted by the FCC, Sprint and T-Mobile are authorized to provide wireless communication services. (Compl. ¶¶ 8, 10.) Said licenses require that both companies provide wireless communication services at a level sufficient to offer adequate service to the population within the licensed service areas - namely, Lower Makefield Township.*fn4 (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) A gap in service, is an area not covered by wireless signals which results in dropped calls as callers enter the uncovered area. Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 260 n1 (3d Cir. Pa. 2002).

The Zoning Hearing Board held four public hearings on Plaintiff's application for a use variance on October 6, 2009, November 2, 2009, January 13, 2010 and on February 16, 2010. (Compl. ¶ 21) (Board's Findings of Fact, Dec. and Order 1). During these hearings, Liberty Towers avers that it presented evidence in the form of testimony and exhibits demonstrating that T-Mobile has significant gaps in its wireless communication service in Lower Makefield Township. (Compl. ¶

22) Specifically, Liberty Towers presented evidence from several persons accepted as experts by the Board that the T-Mobile service available in the subject area was unreliable and the construction of the proposed wireless telecommunication facility would allow T-Mobile to provide "adequate service" to the residents of Lower Makefield Township pursuant to its FCC licensing requirements. (Compl. ¶ 22) Philip Burtner, P.E., a structural engineer provided testimony regarding the layout and design of the proposed communications tower and its compliance with applicable regulations. (Hr'g Tr. 32: 4-23, Oct. 6, 2009) Through Burtner's testimony the Board confirmed that the proposed one-hundred-fifty-foot tower constructed of galvanized steel would be as close as 400 feet to the nearest residential dwelling. See (Hr'g Tr. 28: 4-11; 48: 23-25, Oct. 6, 2009) Burtner testified that in his opinion the facility would have virtually no impact on traffic. (Hr'g Tr. 30: 22-23, Oct. 6, 2009).

Brian Seidel, a land use planner certified by the American Institute of Certified Planners also testified on behalf of Liberty and opined that Liberty's proposed use of the site was similar to the use of existing facilities. (Hr'g Tr. 69-103, Nov. 2, 2009) Seidel provided testimony concerning a balloon test conducted to demonstrate the height of the tower as it compared to its surroundings. According to the results of the balloon test, the tower would be visible to homeowners in and around the subject area. (Hr'g Tr. 82: 3-23, Nov. 2, 2009) Additionally, Seidel testified that it was his opinion that the proposed facility was the least intrusive alternative, however, he was unaware of what efforts T-Mobile made to acquire other sites.

Bassam Iskander, a radio-frequency engineer, accepted as an expert by the Board on the subject of radio-frequency engineering and the design and operation of wireless communication networks, provided testimony on behalf of Liberty Towers about the gap in coverage for T-Mobile cell phone use. Specifically, Mr. Iskander explained the process conducted by T-Mobile and other wireless carriers to determine whether there is a gap in service in a specific area. In doing so, Mr. Iskander explained that T-Mobile relies on a propagation tool, a software program designed to determine existing network conditions by recording signal strength. (Hr'g Tr. 19: 3-11, Jan. 13, 2010) Iskander explained that the propagation tool's results are tested using a drive test data wherein technicians drive through the subject area and measure T-mobile's wireless communication signal strengths. (Hr'g Tr. 19: 7-24, Jan. 13, 2010) During Iskander's testimony Liberty introduced several exhibits-namely maps, depicting the propagation tool's analysis of the wireless service available in the subject area. Said maps depicted several white areas, which Iskander explained were areas where a person would be unable to reliably place a call.*fn5 (Hr'g Tr. 25: 10-24, Jan. 13, 2010) When asked to further expound on the service available in the "white areas," Iskander testified that "it depends on where you are standing. If you're in a car -- if you are outdoors you might have somewhat fair coverage here. . . . [But,] certainly not good coverage." (Hr'g Tr. 28: 16-25, Jan. 13, 2010)

Plaintiff avers that the white areas encompass a heavily traversed area that includes a portion of Interstate 95, a SEPTA commuter rail line to Philadelphia, and portions of several residential subdivisions. (Pl.'s Br. Summ J. 6) Plaintiff introduced another map depicting the wireless coverage in the subject area assuming the proposed facility was constructed. Iskander testified that in his opinion T-Mobile would be able to provide reliable wireless communications services if the proposed tower were constructed. (Hr'g Tr. 42: 12-22, Jan. 13, 2010)

Intervenor Defendant, Templeton, opposing the grant of the variance, testified that she lived in a community adjacent to the proposed site and is a T-Mobile cell phone user, as is her husband. (Hr'g Tr. 6: 12-13, Feb. 16, 2010) Templeton testified that she was able to place calls on her T-Mobile cell phone, both inside and outside her home on several occasions without incident and without dropped calls. (Hr'g Tr. 15: 3-24, Feb. 16, 2010) In fact, Templeton characterized her cell phone service as good and dependable. (Hr'g Tr. 15: 18-24, Feb. 16, 2010) Moreover, Templeton testified that her husband who often uses his cell phone for business, frequently uses his cell phone in making and receiving phone calls from their basement and has been able to do so without incident and without dropped calls. (Hr'g Tr. 16: 4-19, Feb. 16, 2010) Additionally, Templeton testified that she had a clear and unobstructed view of the balloon test from her home. (Hr'g Tr. 9: 1-9, Feb. 16, 2010). According to Templeton the construction of the tower would have a negative impact on her ability to enjoy her home as it would be visible from virtually every room in the back of her home and would deter her from allowing her children to play outside as much as they would otherwise. (Hr'g Tr. 12: 16-25, Feb. 16, 2010)

On February 16, 2010, after reviewing the evidence, the Board concluded that the quality of existing cellular service within the subject area was sufficient, and that there was therefore no legitimate need for the proposed wireless communications facility. Accordingly, the Zoning Hearing Board issued a written decision and order denying Liberty's application for a use variance. (Compl. ¶ 24). Therein, the Board described the testimony and evidence presented at the hearings. See (Board's Decision. Doc. 29 Ex. 2) In addition to finding that Plaintiff's proposed cell site would not eliminate the coverage gap in Lower Makefield for T-Mobile or other licensed cell carriers (Findings Nos. 6-7), the Board made several specific findings of fact including inter alia:

21. The appellant called Bassem Iskander, a radio frequency engineer who testified as an expert on radio frequency engineering and the design and operation of wireless communication networks.

22. The appellant introduced Exhibit A-11 which is a map depicting T~Mobile existing coverage without the proposed site.

23. Exhibit A-11 was prepared by Mr. Iskander using propagation software which records signal strengths throughout the network.

24. Exhibit A-11 is green, yellow and white in color, with the white area depicting unreliable coverage.

25. The appellant introduced Exhibit A-12 which depicts the same geographic area as Exhibit A-11and depicting coverage assuming the proposed site being operational.

26. Both Exhibit A-11 and A-12 depict the proposed site with a red dot titled IBU8173A.

27. Mr. Iskander used the the same propagation tool for A-12 that he used for A-11.

28. Exhibit A-12 depicts the elimination of a substantial portion of the white (unreliable coverage) ...


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