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Horvath Towers III, LLC v. Zoning Hearing Board of Butler Township

United States District Court, M.D. Pennsylvania

March 29, 2017

HORVATH TOWERS III, LLC, Plaintiff
v.
ZONING HEARING BOARD OF BUTLER TOWNSHIP, Defendant.

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE

         Currently 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.

         I. BACKGROUND[1]

         A. Horvath's Zoning Application

         Horvath 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 ¶34).

         On June 12, 2015, Horvath and Limitless submitted a building and zoning permit application to the Butler Township Zoning Officer, which was denied.[2] (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 ¶10).

         B. The Township Ordinance

         Section 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. 22-2 §803.3(e)).

         Section 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).

         C. The Board Hearings

         A public hearing was conducted on July 29, [3] 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.; id.).

         There 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).

         In 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).

         At the 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. 22-6).

         D. The Board's Decision

         The 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 stated:

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 uses.

(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).

         Next, 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 ...


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