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DePolo v. Board of Supervisors of Tredyffrin Township

United States District Court, E.D. Pennsylvania

May 18, 2015

JEFFREY J. DEPOLO
v.
BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP et al.

MEMORANDUM

STEWART DALZELL, J.

Ham radio aficionado Jeffrey J. DePolo sued the Tredyffrin Township Board of Supervisors and its members (collectively, the “Board”) and the Township’s Zoning Hearing Board of Appeals and its members (collectively, the “ZHBA”) over their refusal to let him build a 180-foot radio tower on his property.[1] He contends that federal law as articulated in an FCC regulation and a Pennsylvania state law adopting the federal standard both preempt the township’s antenna height restrictions. The Board and ZHBA filed separate motions to dismiss and, for the reasons set forth below, we will grant both motions.

Because we grant the defendants’ motions dismissing this action, we will deny as moot the motion for reconsideration which certain of DePolo’s neighbors filed after we denied them leave to intervene in this action.

I. Standard of Review

A defendant moving to dismiss under Fed.R.Civ.P. 12(b)(6) bears the burden of proving that a plaintiff has failed to state a claim for relief. See Fed.R.Civ.P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). A Rule 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint and “[t]he question, then, is whether the facts alleged in the complaint, even if true, fail to support the claim.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (internal citation and quotation marks omitted). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), in to survive a Rule 12(b)(6) motion “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’, ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” Iqbal, 556 U.S. at 678.

Our Court of Appeals obliges district courts considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) to engage in a two-part analysis:

First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

When deciding a Rule 12(b)(6) motion to dismiss, the Court generally looks to the facts alleged in the complaint and its attachments, without reference to any other part of the record. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir.1994). All well-pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the plaintiff and all inferences must be drawn in his favor. See McTernan v. City of York, PA, 577 F.3d 521, 526 (3d Cir. 2009) (internal quotation marks omitted). To survive a motion to dismiss, a plaintiff must allege facts that “raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555).

II. Factual And Procedural Background

We draw our recital of the factual background from the plaintiff’s complaint and the factual findings in the Zoning Board’s decision denying DePolo's application for what effectively would be a 190-foot tower, but granting him a permit for a 65-foot tower. DePolo appended the Zoning Board decision as an Exhibit to the complaint.

On November 25, 2013, the plaintiff prepared and filed a request for a building permit for a “180-foot self-supporting antenna system” in order to pursue his amateur radio operations from his residence on Horseshoe Trail, Malvern, Pennsylvania.[2] Cmplt. at ¶¶ 14, 24. Because of the many tall trees on his property and the hilly terrain, that height was the “minimum height necessary” to permit communication on the radio frequencies of interest to him. Id. at ¶¶ 28, 29. On February 4, 2014, after the Zoning Officer denied his permit, he appealed to the ZHBA requesting a permit for an antenna installation in excess of the 35-foot ordinance limit. Id. at ¶ 25; see also Ex. A at 26. The local zoning ordinance at issue, Section 208-18.G of the Tredyffrin Township Zoning Ordinance, establishes area, bulk and height restrictions for the R-1/2 residential district in which DePolo lives and provides that “[t]he height of any building shall not exceed 35 feet.” Ex. A at 11. Section 208-113, Building height projections, provides in relevant part that “antennas and similar projections shall be included in calculating the height of a building, ” with certain conditions. Id.

The ZHBA held public hearings on March 27, April 30, May 5, May 22, and June 26, 2014 to take evidence and consider DePolo’s application. Cmplt. at ¶ 26. The ZHBA reviewed the Zoning Officer’s denial of DePolo’s permit application and the Officer’s offer to allow DePolo to to build a 65-foot tower in recognition of a Pennsylvania law fostering amateur radio operation. Ex. A at 19. DePolo contended at the hearing that the Zoning Officer erred in denying the permit for a 180-foot tower. Id. He argued that the Federal Communications Commission (“FCC”) rule known as PRB-1, Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C. 2d 952 (1985), adopted at 47 CFR §97.15(b), (hereinafter “PRB-1”) preempts the Township from restricting antenna height. Id. He declined to reduce the height of the proposed tower he sought to build. Id. at 15.

The ZHBA granted party status to DePolo’s Horseshoe Trail neighbors, Schuylkill Township, the National Park Service of the United States Department of the Interior --representing Valley Forge National Historical Park (“Valley Forge”) -- and an association of 800 homeowners. Id. at 2. The ZHBA admitted into evidence sixteen exhibits on its own behalf, fifty-eight exhibits on DePolo’s behalf, twenty-four exhibits on behalf of the Horseshoe Trail neighbors, one on behalf of Schuylkill Township, and two on behalf of Tredyffrin Township. Id. at 2-9.

The ZHBA found that the plaintiff’s property at 1240 Horseshoe Trail is a 2.9 acre wooded lot located in the Township’s R-1/2 residential district. Id. at 10. There is also a 200-foot PECO tower and noncommercial 90-foot tower along Horseshoe Trail in Schuylkill Township. Id. In the summer of 2000, DePolo purchased a home at 1465 Horseshoe Trail, Schuylkill Township, Chester County, and applied for a building permit to build a 170-foot radio tower on the property, which Schuylkill Township denied on July 26, 2000 and he appealed to the Zoning Board. Id. On October 31, 2000, the Schuylkill Township Zoning Board authorized DePolo to build the 170-foot tower and appeals of that decision were dismissed by the Court of Common Pleas and the Commonwealth Court. Id. at 10, 11. DePolo never erected that tower. Id. at 11. He subsequently bought the present property in Tredyffrin Township. Id.

The ZHBA found that the tower DePolo seeks to build on his personal property was 15 feet wide at its base and about a yard across between the 120-foot and 180-foot marks and was to be installed about thirty-five to forty feet from the southeast corner of the DePolo home. Id. at 11, 12. The proposed tower had no guy wires as it was to be self-supporting and no beacon as it was below the Federal Aviation Administration’s 200-foot threshold. Id. at 12. DePolo, who has held an amateur radio license since 1988, intended to use the tower for non-commercial purposes. Id. Clear line of sight works best for all frequencies. Id.

The ZHBA also made factual findings that DePolo could currently communicate at VHF, UHF and microwave frequencies with two seventeen-foot antennas (one of which was mounted to the top of a ten-foot basketball stand). Id. at 13. A 65-foot tower with a seven megahertz antenna would enable him to reach Ireland, Portugal, most of Spain, parts of North Africa and parts of France with a 40% reliability threshold (a term not defined in the ZHBA decision), a threshold that would only increase to 50% were the 180-foot tower permitted. Id. It also found that a 65-foot tower with a fourteen megahertz antenna would allow DePolo to reach Belgium, Amsterdam, all of Spain and North Africa with a 40-50% reliability threshold, which would only increase by ten percentage points were he permitted to build the 180-foot tower. Id. at 13, 14. The ZHBA also found that amateur radio operators can communicate over the Internet or by using amateur satellite antennas. Id. at 14.

The ZHBA found that the proposed 180-foot tower was “not compatible” with the surrounding residential neighborhood and “would create an adverse visual impact on the neighborhood.” Id. at 15. It also found that the tower’s “height, mass, and latticework design” was “of a type universally associated with. . . a factory area or industrialized complex” and posed a safety hazard to neighboring properties because its fall radius extended well into those properties. Id. Valley Forge objected to the application because the proposed tower “would be visible from a key viewpoint in Valley Forge National Historical Park.” Id. “Long views within and beyond the Valley Forge National Historical Park are [a] historic resource and an important aspect of the visitor experience.” Id. at 16.

The ZHBA reviewed state and federal regulations touching on the zoning appeal. Id. At the state level, Section 302 of the General Local Government Code provides that municipalities regulating antenna height “shall impose only the minimum regulations necessary to accomplish the legitimate purpose of the municipality, ” id. (quoting 53 Pa. Cons. Stat. Ann. § 302(a)). Municipalities may impose necessary safety regulations but must accommodate amateur radio communications, inter alia, by not restricting radio antenna height to less than sixty-five feet above ground level. Id. Municipalities may also take action to “protect or preserve a historic, a ...


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