United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE
before the court is a motion for summary judgment filed by
the defendant, the Zoning Hearing Board of Butler Township
(“the Board”), (Doc. 14), and a
cross-motion for summary judgment filed by plaintiff Horvath
Towers III, LLC (“Horvath”), (Doc. 19).
Based on the foregoing reasons, the Board's motion is
GRANTED and Horvath's motion is DENIED.
Horvath's Zoning Application
is in the business of leasing real estate, on which it
constructs radio towers and then sublets the use of those
towers to personal wireless communications providers licensed
by the Federal Communications Commission (“FCC”).
(Doc. 20 ¶1; Doc. 25 ¶1). The
Board is a government agency created by the Township of
Butler, Schuylkill County, Pennsylvania pursuant to Section
10901 of the Pennsylvania Municipalities Planning Code, 53
Pa. Stat. §10101-11202. (Id. ¶2;
id. ¶2). On August 24, 2015, Horvath entered
into a land lease agreement with Ettore DiCasimmiro, executor
of the estate of Eileen J. DiCasimmiro, together with Ettore
DiCasimmiro, Felicia Bruni, and Bernard DiCasimmiro. (Doc.
20 ¶3). The DiCasimmiro property is located in
the R-1 Low Density Residential Zoning District (“R-1
District”) within Butler Township. (Id.
¶14). Horvath intended to use the leased land to build a
tower which it would then sublease to Limitless Wireless
(“Limitless”), a wireless telephone and high
speed data internet provider. (Id. ¶¶5,
7). There is a tower owned and/or operated by Service
Electric in the area of the DiCasimmiro property.
(Id. ¶34; Doc. 25 ¶24). The tower
is not located in the R-1 District and the record does not
indicate when that tower was constructed. (Doc. 25
12, 2015, Horvath and Limitless submitted a building and
zoning permit application to the Butler Township Zoning
Officer, which was denied. (Doc. 16 ¶1). Horvath
appealed the denial to the Board and requested a special
exception under Section 509 of the Butler Township Zoning
Ordinance of 1997 to erect a cell tower in the R-1 District.
(Id. ¶2). The tower was to consist of a
195-foot monopole-type tower with proposed Limitless antennas
and a four foot lighting rod on top, bringing the total
height for the proposed tower to 199 feet. (Doc. 20
509 was added to Butler Township Zoning Ordinance of 1997
(“Ordinance”) on March 26, 2010 by Ordinance No.
2010-9. (Doc. 18-2 at 20). This section was added
under Article V of the Ordinance titled “Supplementary
Regulations.” Section 509 is titled “Uses Not
Specified” and it states as follows:
Any Use not specifically mentioned in Article IV or elsewhere
in the Butler Township Zoning Ordinance of 1997 or any
amendments thereto shall be allowed by Special Exception in
the district or districts where, and to the extent that,
similar uses are Permitted Uses or are allowed by Accessory
Use, Conditional Use or Special Exception; provided that said
Use does not constitute a public or private nuisance, and
provided that said Use will be subject to any reasonable
restrictions to protect the public health, safety and general
welfare determined to be necessary by the Butler Township
Zoning Hearing Board. If the Use not specifically mentioned
is dissimilar to all Uses which are Permitted Uses or are
allowed by Accessory Use, Conditional Use or Special
Exception, then such Use shall be allowed by Special
Exception in the Light Industrial District (§408):
provided that said Use does not constitute a public or
private nuisance, and provided that said Use will be subject
to any reasonable restrictions to protect the public health,
safety and general welfare determined to be necessary by the
Butler Township Zoning Hearing Board.
(Id.). Section 803.3 of the Ordinance is also
applicable to Section 509 because Section 509 qualifies as a
special exception. Section 803.3 provides a list of seven
conditions applicable to the Board's grant of any special
exceptions under the Ordinance. One requirement is that
“[s]uch use shall not adversely affect the character of
the zoning district, nor the conservation of property values,
nor the health and safety of residents or worker on adjacent
properties and in the general neighborhood.” (Doc.
403 of the Ordinance lists the items that are allowed within
the R-1 District specifically, the district Horvath proposed
to build a tower. (Doc. 18-2 at 17-19). Section 403
does not explicitly allow wireless communication facilities
in the R-1 District. Section 403.1(d) does, however, allow
for “[p]ublic uses, structures and buildings owned or
operated by the Municipality or any Municipal Authority
organized by the Municipality” as a permitted use.
(Id. at 17). Horvath's application was submitted
pursuant to Section 509 under the theory that Horvath's
tower might qualify as a special exception because it was
similar to the permitted use listed in Section 403.1(d).
public hearing was conducted on July 29,  August 26, and
October 14, 2015 regarding Horvath's request for a
special exception and evidence was presented to the Board in
the form of oral testimony and exhibits. (Doc. 16
¶7). During these hearings, four individuals testified
on Horvath's behalf: (1) James Shelton, a Limitless
radiofrequency engineer; (2) Jeffrey Nahorny, P.E., a
professional engineer; (3) John Doyle, M.A.I., a real estate
appraiser; and (4) Deborah Baker, a site acquisition
consultant. (Doc. 20 ¶24; Doc. 25
¶24). Several residents also testified at the hearings
and objected to the application (“objectors”). In
addition, Edward Barket, a real estate appraiser, offered
testimony on behalf of the objectors. (Id.;
was testimony regarding the need for a tower in order to
provide radiofrequency coverage. (Doc. 16 ¶9).
Mr. Shelton and Ms. Baker also testified that the proposed
tower would be similar to municipality-owned towers in other
counties. (Doc. 18-7 at 29, 73). Horvath also
provided eighteen examples of municipality owned or operated
wireless communication facilities within the Commonwealth of
Pennsylvania, submitted as Applicant's Exhibit 8. (Doc.
16 ¶10; see also Doc. 18-3 at
23; Doc. 18-8 at 24-25). None of these facilities
were located in Schuylkill County. (Id.). All of the
facilities were located in Dauphin and Lancaster County, with
the exception of one facility located in Berks County. In
addition, no party could identify a town within Schuylkill
County that owned its own tower. (See Doc.
18-7 at 74; Doc. 18-8 at 29).
addition to the above testimony regarding municipality-owned
towers, Horvath and the objectors put on evidence regarding
the impact of the proposed tower on the community. Horvath
put on evidence to show that the proposed tower would meet
the seven requirements of Section 803.3 for all special
exceptions. (See Doc. 20 ¶32). Mr.
Doyle presented a written report utilizing the paired
analysis methodology as evidence to show that the proposed
tower would not adversely impact the market value of homes in
the community. (See id. ¶32(c); Doc.
18-3 at 76-122; Doc. 18-4). Unlike Mr.
Doyle, Mr. Barket, the real estate appraiser who testified on
behalf of the objectors, did not prepare a written report and
did not conduct a particular study in reaching his opinion
that the proposed tower would adversely effect the market
value of homes. (See id. at 33).
conclusion of the hearing, Horvath and the objectors
submitted findings of fact and conclusions of law for
consideration by the Board. (Doc. 20 ¶25).
Ultimately, the Board denied Horvath's request for a
special exception in a written decision dated December 9,
2015. (Id. ¶26; see also Doc.
Board made several conclusions of fact and law to support
their decision to deny Horvath's application for a
special exception under Section 509. First, in its
conclusions of law, the Board found that Horvath's
“proposed use [was] not similar or sufficiently similar
to uses, building [sic] or structures of Butler
Township” as required by Section 509. (Doc.
22-6 ¶13). In making this finding the Board
While there may be municipally owned or operated facilities
which are similar to privately owned or operated wireless
facilities in terms of their design, structures and
operation, including towers used for emergency or
governmental communication purposes, elsewhere in
Pennsylvania, none are known to exist or needed in Schuylkill
County nor specifically in Butler Township as the record
lacked such evidence; moreover, the record lacks evidence of
many key issues about these other wireless communication
towers for municipal or public use located elsewhere
including as to when any such public or emergency (911)
communication towers where erected vis-á-vis any
surrounding residential structures nearby, the actual
distances from the towers to the residential structures, what
the corresponding zoning regulations allowed and what similar
zoning districts they were erected in the respective
locations, and the height of the other structures as none
appear from the photographic images submitted as part of
Applicant Exhibit 8 to be as large or high as the
Applicant's proposed cell tower. There was no testimony
that there are plans for any wireless communication towers to
be utilized by the township for police or other municipal
(Id. ¶11). The Board did not give any weight to
Applicant's Exhibit 8. (Id.). Instead of finding
that the proposed tower was similar or substantially similar
to any uses allowed in the R-1 District, the Board found that
the proposed use might be permitted in Light Industrial
District. (Id. ¶¶14-15).
the Board concluded that “[e]ven if the Applicant
[were] able to carry its burden for a special exception in
R-1, the Applicant [had] not adequately met its burden set
forth set forth in Section 803.3 [of the Ordinance] for
special exceptions.” (Id. ¶17). In
reaching this secondary conclusion, the Board explained that
Horvath had not demonstrated compliance with the criteria in
Section 803.3. (Id.). The Board found that (1) the
proposed tower would adversely affect the character of the
neighborhood and the conservation of property values by
deteriorating property values and their marketability; (2)
that no adequate safeguards could be implemented to mitigate
this impact; (3) that the tower was not in harmony with the
general purpose and intent of the Ordinance and would not
promote the most appropriate use of the land; (4) that it
would be an attractive nuisance to children; (5) that is
might create traffic of construction equipment during
erection; and (6) that it would conflict with the direction
of building development. (Id.). The Board then
stated that the resident objectors had “met ...