United States District Court, M.D. Pennsylvania
NORTHEAST PENNSYLVANIA SMSA LP, d/b/a VERIZON WIRELESS, Plaintiff,
THE SMITHFIELD TOWNSHIP BOARD OF SUPERVISORS, Defendant.
D. MARIANI, UNITED STATES DISTRICT JUDGE
an action for alleged violations of the Telecommunications
Act of 1996 (“TCA”), 47 U.S.C. §
332(c)(7)(B), and an appeal under Pennsylvania's
Municipalities Planning Code (“MPC”), 53 Pa.
Stat. and Cons. Stat. Ann. §§ 10101, et
seq., from a denial of an application to place a
wireless communications facility in Monroe County,
Pennsylvania. Plaintiff Northeast Pennsylvania SMSA LP, d/b/a
Verizon Wireless (the “Plaintiff” or
“Verizon”), filed its Complaint, (Doc. 1), on
August 25, 2017, against Defendant Smithfield Township Board
of Supervisors (the “Defendant” or
“Board”). Verizon alleges that the Board's
decision to deny Verizon permission to build a ninety-five
foot high monopole on property in Smithfield Township
violates the TCA because its decision was not supported by
“substantial evidence, ” 47 U.S.C. §
332(c)(7)(B)(iii), and because its decision
“prohibit[ed] or [had] the effect of prohibiting the
provision of personal wireless services, ” 47 U.S.C.
§ 332(c)(7)(B)(i)(II). Claiming the Court's
supplemental jurisdiction, Verizon also alleges that the
Board violated the MPC because its decision was not based on
November 16, 2017, the Board filed a Motion to Dismiss (Doc.
8), which this Court subsequently denied (Doc. 17). On
November 16, 2018, the Board filed a motion for summary
judgment (Doc. 21). Thereafter, Verizon filed a cross-motion
for summary judgment (Doc. 26). Both motions have been fully
briefed, and the motions are ripe for disposition. For the
reasons stated herein, this Court will grant summary judgment
in favor of Verizon on the substantial evidence claim under
the TCA and under the MPC. In so doing, the Court also will
deem the prohibition of service claim moot.
Factual and Procedural History
has been authorized by the Federal Communications Commission
(“FCC”) to operate a wireless telephone
communication system within its designated frequency spectrum
in Monroe County, Pennsylvania. (Doc. 27, at ¶ 2; Doc. 31,
at ¶ 2). As a licensed FCC wireless telephone
communication system operator, Verizon is obligated to
provide reliable wireless telephone services to its
customers. (Doc. 27, at ¶ 3; Doc. 31, at ¶ 3).
Verizon operates its system pursuant to the rules and
regulations set forth by the FCC and the Federal Aviation
Administration (“FAA”). (Doc. 27, at ¶ 4;
Doc. 31, at ¶ 4). As an FCC licensed operator, Verizon
“must ensure that its telephone signal strength and
wireless capacity is sufficient to provide proper reception
and communication within its licensed area.” (Doc. 27,
at ¶ 5; Doc. 31, at ¶ 5).
entered into a lease agreement with RR2 Airport Road, LLC,
for a 75' x 75' parcel of land located at 119 Airport
Road in Smithfield, PA. (Doc. 27, at ¶ 8; Doc. 31, at
¶ 8). The agreement permits the use of the premises for
constructing, maintaining and operating a communications
facility. (Doc. 27, at ¶ 9; Doc. 31, at ¶ 9).
February 23, 2017, pursuant to the MPC and the Zoning
Ordinance of the Smithfield Township, Monroe County,
§§ 101 et seq. (hereinafter
“Ordinance”), Verizon submitted a conditional use
application to the Board for the construction of a
communications facility. (Doc. 27, at ¶ 10; Doc. 31, at
¶ 10). In support of its application, Verizon submitted:
(1) an Application (Doc. 27-1); (2) the Zoning Plan (Doc.
27-2); (3) Generator Specifications (Doc. 27-3); (4)
Structural Letter (Doc. 27-4); (5) FCC License (Doc. 27-5);
(6) Radio Frequency Design Report (Doc. 27-6); (7)
Interference Analysis (Doc. 27-7); (8) Electromagnetic
Emissions Analysis (Doc. 27-8); (9) FAA Determination (Doc.
27-9); (10) Pennsylvania Bureau of Aviation Screening (Doc.
27-10); (11) Memorandum of Lease (Doc. 27-11); (12) National
Operations Center Contact (Doc. 27-12); (13) Emergency
Service Use Confirmation (Doc. 27-13); (14) Agreement to
Provide Removal Bond (Doc. 27-14); (15) Engineering Comment
Letter (Doc. 27-15); (16) Revised Plans (Doc. 27-16); (17)
Letter from Rettew Associates (Doc. 27-17); (18) Pre-Hearing
Statement (Doc. 27-18); (19) Existing In-Building Coverage
Map (Doc. 27-19); (20) Proposed In-Building Coverage Map
(Doc. 27-20). (Doc. 27, at ¶ 12; Doc. 31, at ¶ 12).
Board held a hearing on April 26, 2017, and May 31, 2017,
regarding Verizon's request. (Doc. 27, at ¶ 11; Doc.
31, at ¶ 11). At the hearing, Verizon presented the
testimony of three witnesses, Eric Brinser (civil engineer),
Andrew Petersohn (independent radio-frequency expert), and
Sue Manchel (site acquisition consultant). (Doc. 27, at
¶ 13; Doc. 31, at ¶ 13). Additionally, two
witnesses testified in opposition to Verizon's
application at the hearing - Robert Lovenheim (a Township
Supervisor and commercial pilot) and Becky Ozgun (a resident
of nearby Lake Valhalla and Vice President of the Lake
Valhalla Home Association) - and one witness submitted a
letter which was read at the hearing - Jeff Root (who
operates a skydiving operation at the Stroudsburg-Pocono
Airport). (See Doc. 27-23, at 15, ¶ 45). The
testimony of the objectors “principally concerned the
proximity of the proposed facility to the Stroudsburg Pocono
Airport.” (Doc. 27, at ¶¶ 29-30; Doc. 31, at
21, 2017, the Board denied Verizon's application. (Doc.
27, at ¶ 15; Doc. 31, at ¶ 15). On July 25, 2017,
the Board issued a written decision (Doc. 27-23) denying
Verizon's application. (Doc. 27, at ¶ 16; Doc. 31,
at ¶ 16; see also Doc. 27-23, at 25). The Court
reviews the written decision (Doc. 27-23) below.
decision, the Board made 51 findings of fact. Among the
findings of fact, the Board found that “[t]he property
in question is owned by RR2 Airport Road, L.L.C. of East
Stroudsburg, Monroe County, PA 18301.” (Doc. 27-23, at
7, at ¶ 3). Because the property is located in the
Township's M-1 Industrial District, a communications
tower “is allowed as a conditional use.”
(Id. at ¶ 4).
“proposed structure is a wireless communications tower
that is ninety-five feet tall with a five foot lightning rod
at the top for a total of one hundred feet.”
(Id. at ¶ 5). “The cell tower is in very
close proximity to the Stroudsburg - Pocono Airport (which
means there is no airport tower directing air
traffic).” (Id. at ¶ 6). “The
existing property is already developed with several buildings
located thereon including a large parking area and the
balance of the property is either lawn or wooded.”
(Id. at 8, ¶ 8). The proposed tower is to
contain approximately twelve antennae, each of which is about
a foot deep and no more than eight feet in length.
(Id. at ¶ 9). Further, “[t]he cell tower
pole . . . will be a monopole in a 50' by 50'
compound with a 75' by 75' leased area with an
equipment shelter, screening on the outside and a stone
access drive leading to the compound.” (Doc. 27-23, at
8, ¶ 10). Verizon is also proposing obstruction lighting
and a steel monopole with a galvanized non-reflective finish
designed to accommodate two additional carriers.
(Id. at ¶ 11). “The equipment platform
will be a metal platform raised off the ground with a canopy
over it and would stand approximately 12'
7”.” (Id. at ¶ 12). “The
equipment platform will house electrical equipment necessary
for the cell tower. The overall facility will not be manned
or occupied so no sewer service or water service is being
provided to the facility.” (Id. at ¶ 13).
A generator will also be operated bimonthly or in the case of
an emergency, and “the Applicant is of the position
that this generator will not create any noise in the
area.” (Id. at ¶ 14). To prevent
unauthorized access to the facility, an eight-foot high chain
link fence with one foot of barbed wire will surround the
facility. (Id. at ¶ 15). At the base of the
complex, Verizon will also plant evergreens which will reach
approximately eight to twelve feet in height, and Verizon
would maintain the landscaping screen. (Doc. 27-23, at 9,
¶ 16). Verizon will include “signage . . . that
will provide a typical warning, ” two off-street
parking spaces, and lighting for inside the compound.”
(Id. at ¶¶ 17-19). “[T]raffic to and
from the site will be minimal with a technician or employee
visiting the site every month or every other month.”
(Id. at ¶ 20).
Board then turns to reviewing the testimony given at the
hearing. In reviewing Eric Brisner's testimony, the Board
noted that “[w]hile Mr. Brisner testified that the
tower will be built to comply with all applicable industry
standards, he did not present any testimony regarding the
criteria that shall be taken into consideration by the
Township Board of Supervisors (when acting upon a condition
use application) as found in ordinance Section 705
C(1)-(5).” (Doc. 27-23, at 10, ¶ 21). The Board
further found that “Mr. Brisner confirmed that the cell
tower's 100' setback is not sufficient and does
overlap onto an existing manufacturing building on the
northwest corner of the proposed tower setback radius”
and that “Mr. Brisner was not completely familiar with
the Zoning Plan as he could not respond to a question
regarding a symbol on the Zoning Plan.” (Doc. 27-23, at
10, ¶¶ 22-23).
respect to Mr. Petersohn's testimony, the Board stated
that “[he] testified that the site in question was
chosen by Verizon Wireless in order to provide more reliable
service in the Township as there is spotty coverage due to
aggressive terrain. However, the Board of Supervisors does
not find that testimony credible or persuasive as township
residents (who attended the hearing) disagreed with this
statement.” (Id. at 11, ¶¶ 25). Mr.
Petersohn also “testified as to the other Verizon
facilities currently serving the area; and, he prepared a
radiofrequency design analysis demonstrating the need for
another Verizon cell tower facility within the
Township.” (Id. at ¶ 26). Further,
“Mr. Petersohn testified that while the proposed cell
tower would be a significant improvement, it would not
service the entire Township given the Township terrain and
the height of the proposed tower.” (Id. at
the Board found that the FAA determination and PA Bureau of
Aviation, to which Petersohn pointed in support of his
testimony that the cell tower was not a hazard to air
navigation, did not address the concerns with respect to
skydiving activities at the nearby airport. (Doc. 27-23, at
11-12, ¶¶ 29-30). The Board noted that the FAA and
the PA Bureau of Aviation letters “refer to a 130'
high cell tower and not the 100' cell tower in question.
While the Applicant's argument is that if a 130' cell
tower provides no obstruction, it follows that a 100'
high cell tower would also not be an obstruction, there is
still no evidence or testimony regarding the consideration,
protection or safety of the skydivers at the tower height of
100'.” (Id. at ¶ 31). The Board then
stated that “Mr. Petersohn . . . did not present any
testimony regarding the criteria that shall be taken into
consideration . . . as found in Ordinance Section 705
C(1)-(5).” (Doc. 27-23, at 12, ¶ 32).
the Board reviewed Edward Baker, a citizen objector's
testimony. The Board noted, “[w]hile Mr. Baker was
concerned that the tower be properly lighted, he also
expressed concerns that the airport was uncontrolled and that
there could be interference with the base repeater that would
interfere with MedEvac communications.” (Id.
at 12-13, ¶ 33).
Board then reviewed Sue Manchel's testimony. The Board
found that Manchel testified that “Verizon wireless has
already executed a lease agreement with the property owner,
” and that “there was another acceptable cell
tower site . . . but . . . Verizon could not move forward as
a result of tax issues.” (Doc. 27-23, at 13,
¶¶ 35-36). Additionally, “Verizon will make
space available on the tower for other wireless carriers as
well as emergency service providers” and “would
provide to the Township a tower removal bond.”
(Id. at ¶ 37-38). The Board also specifically
noted that “Ms. Manchel . . . did not present any
testimony regarding the criteria that shall be taken into
consideration by the Township Board of Supervisors as found
in Ordinance Section 705 C(1)-(5).” (Doc. 27-23, at
13-14, ¶ 39).
Board then reviewed Robert Lovenheim's testimony.
Lovenheim referenced a letter written by Jeff Root, who
operates a skydiving operation located at the
Stroudsburg-Pocono Airport, which was introduced into
evidence. (Doc. 27-23, at 14, ¶ 40). The letter
“clearly stated the tower should not be approved as it
represented a safety hazard to skydiving customers, aircraft
and others. Mr. Root stated that the FAA's blanket
formula did not accurately account for other variables such
as a busy helicopter airport and its skydiving
operations.” (Doc. 27-23, at 13-14, ¶ 43).
Further, “based upon an informal survey on all points
of the compass around the airport, Mr. Lovenheim testified
that he has found no complaints of Verizon service from its
customers.” (Doc. 27-23, at 15, ¶ 47).
“Becky Ozgun offered testimony as a resident of nearby
Lake Valhalla and as Vice President of the Lake Valhalla Home
Association. She also believed the cell tower is dangerous in
the area as it would create a safety issue where she has seen
parachuters fall in trees and gliders fall into Lake
Valhalla.” (Doc. 27-23, at 15, ¶ 45). The Board
noted that “Mr. Steve Somers, as owner of the property
in question, testified that he had petitioned Verizon
Wireless to improve the wireless service in the area.
However, Ms. Ozgun testified that she and other individuals
who live in the Township have excellent service.”
(Id. at ¶ 46).
Board found that the “Township Planning Commission did
review the conditional use application and did recommend that
the application be granted with the following conditions i.e.
there be compliance with the Township Engineer [Jon Tresslar]
review letter of April 3, 2017 and that there be a safety
engineer report concerning the safety of the tower near the
airport confirming that there would be no interference with
planes, helicopters, parachutes, and then like.” (Doc.
27-23, at 16, ¶ 48). The Board also noted that
“[w]hile the Applicant's Engineer did provide a
Response Letter to the Tresslar Correspondence, the Applicant
did not present any follow-up response from Mr. Tresslar that
Tresslar had reviewed the revised Zoning Plan to support the
position that the Applicant had, in fact, complied with the
various township ordinance provisions as outlined in his
letter. Indeed, several of the Rettew responsive comments
were that expert testimony would satisfy the requirements or
that items outlined in Ordinance section 705.C [sic]
will be addressed at the Conditional Use Hearing; and, this
did not occur.” (Doc. 27-23, at 16, ¶ 49).
the Board found “that the Applicant has not complied
with all ordinance requirements; and, if there has been
ordinance compliance, there has not been sufficient evidence
presented to protect the health, safety and general welfare
of the present or future residents of Smithfield Township
including the individuals who utilize the Stroudsburg -
Pocono Airport such as the fixed wing pilots, rotary wing
pilots and the parachuters (mostly novice jumpers coming from
urban areas). (Doc. 27-23, at 16, ¶ 50).
making its findings of fact, the Board concluded that the
requirements of the Ordinance were not met for the following
While the Applicant's presentation covered many areas,
the testimony presented by the Applicant does not reflect the
Applicant's ability (or intent) to meet all ordinance
requirements and standards.
There were areas where the Applicant's testimony was
incomplete. For example and while under Section 705(B) there
was much testimony regarding the design factors to be
considered, the setback factor was not fully considered.
There was testimony that the tower could collapse and hit one
of the manufacturing buildings on the adjoining parcel.
Further, one of the Applicant's experts…no matter
how experienced…was not able to identify a certain
mapping symbol when questioned by the Township Engineer.
Still further, the ”no hazard” or “no
obstruction” letters that were received from the FAA
and PA Bureau of Aviation dealt with a 130'…and
not a 100'…tower.
Under Section 705(C), there was no testimony as to whether
the project has a detrimental or positive impact on adjacent
properties or whether the use would have a negative impact on
property values. While the approval of the use could perhaps
be conditioned in such a manner as to eliminate or
substantially reduce the detrimental impacts of the tower
(such as the installation of lighting), having the top of the
tower jutting out just over the tree line is creating an
obstacle that could easily be overlooked, especially by
novice pilots or parachuters, and that danger cannot be
addressed by a simple condition attached to the use.
There was also no testimony that the use will have a positive
or negative effect on the environment, job creation
“…or any other factions which reasonably relate
to the health, safety and general welfare of the present or
future residents of…Smithfield Township.” There
was also no testimony as to whether the use will be developed
and improved in a way which is consistent with the Ordinance
or the Township's Comprehensive Plan.
It may be argued that the Township is being too strict in
interpreting its Ordinance, it would have been a simple
matter for the Applicant to present a Community Planner to
testify as to these “missing” Section 705(c)
factors.Further and respectfully, it is not the
responsibility of the Township to tell an Applicant how to
present its case.
Still further, if you review Applicant's Exhibit No.9-the
FAA Determination of No. Hazard-you will see that such
determination “…does not relieve the sponsor of
compliance responsibilities relating to any law, ordinance or
regulation of … [an] [sic] local government
body”. Therefore, the Applicant must still comply with
township ordinances so that having a “no hazard'
letter in its file is not a controlling factor but is only
one factor of many to consider.
The use of an airport-especially an uncontrolled one-is
fraught with many potential problems with take-offs,
landings, weather, terrain, novice pilots and novice
parachuters. This is precisely why the Township has adopted
an Airport Ordinance in addition to customary zoning
ordinance. There is no reason to compound those existing
problems with another one problem, especially since there
exists another viable cell tower site within the Township but
the issues of economics did not make that location acceptable
to the Applicant. The Township respectfully suggests that the
Applicant work out these issues with the other site issue
rather than create safety issues with the present site.
Moreover, the Applicant has not presented evidence that the
cell tower site conforms to all zoning requirements that
would normally apply if each building were on a separate lot.
In Ordinance Section 502 [Two (2) or More Buildings on a Lot]
two (2) or more principal buildings located on a parcel in
single ownership shall conform to all of the requirements of
the [Ordinance] which would normally apply to each building
if it were on a separate lot. Under the ordinance, there is
no question that the cell tower complex is a
“building” and is a second principal use to the
industrial buildings located on the lot. There was no
testimony to confirm compliance with Ordinance Section 502.
Finally and assuming arguendo that the Applicant did
meet all Ordinance requirements, the Board has determined
that the Objectors have presented evidence that the proposed
use will adversely affect the public safety in a way not
normally expected i.e. while perhaps not of a major concern
to the general public, the tower in close proximity to an
airport will adversely affect pilots and parachuters.
(Doc. 27-23, at 20-23).
the Board listed 10 “Conclusions of Law.” Among
its conclusions of law, the Board decided that “[t]he
Applicant has presented insufficient evidence to establish
ordinance compliance for a conditional use under the
Ordinance including evidence concerning a setback,
detrimental or positive impact on adjacent properties,
positive or negative impact on environment or other factors
which reasonably relate to health, safety and general welfare
of the township residents and whether the property could be
developed in a character consistent of the Ordinance and the
Township Comprehensive Plan.” (Doc. 27-23, at 23-24,
¶ 6). “In other words, there has not been
compliance of Sections 704(C), 705(B), and 705(C)(1)-(5) of
the Ordinance.” (Id. at ¶ 7). The Board
also concluded that “the Applicant has not presented
evidence that the tower site conforms to all zoning
requirements that would normally apply if each building were
on a separate lot.” (Id. at ¶ 8).
Finally, “[i]f there has been ordinance compliance, the
Objectors have presented sufficient evidence that the use
will adversely affect the public health, safety and
welfare.” (Id. at ¶ 9).
Standard of Review
summary adjudication, the court may dispose of those claims
that do not present a “genuine dispute as to any
material fact.” Fed.R.Civ.P. 56(a). “As to
materiality, . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once such a showing has been made, the non-moving party must
offer specific facts contradicting those averred by the
movant to establish a genuine issue of material fact.
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888 (1990). Therefore, the non-moving party may not oppose
summary judgment simply on the basis of the pleadings, or on
conclusory statements that a factual issue exists.
Anderson, 477 U.S. at 248. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by citing to particular parts of materials in
the record . . . or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). In
evaluating whether summary judgment should be granted,
“[t]he court need consider only the cited materials,
but it may consider other materials in the record.”
Fed.R.Civ.P. 56(c)(3). “Inferences should be drawn in
the light most favorable to the non-moving party, and where
the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true.” Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert.
denied 507 U.S. 912 (1993).
“facts must be viewed in the light most favorable to
the nonmoving party only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007). If a party has carried its burden
under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact. When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.
Id. (internal quotations, citations, and alterations
case, the parties have filed cross-motions for summary
judgment. According to the Third Circuit:
Cross-motions are no more than a claim by each side that it
alone is entitled to summary judgment, and the making of such
inherently contradictory claims does not constitute an
agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial
consideration and determination whether genuine issues of
material fact exist.
Lawrence v. City of Phila., 527 F.3d 299, 310 (3d
Cir. 2008). Each movant must show that no genuine issue of
material fact exists; if both parties fail to carry their
respective burdens, the Court must deny the motions. See
Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d
Cir. 2008). When reviewing each cross-motion, the Court is
still bound to view the evidence in the light most favorable
to the non-movant. Fed.R.Civ.P. 56; United States v.
Hall, 730 F.Supp. 646, 648 (M.D. Pa. 1990).
parties' cross-motions for summary judgment rest on two
provisions of the TCA: one procedural and the other
substantive. “The TCA expressly preserves the
traditional authority enjoyed by state and local government
to regulate land use and zoning, but places several
substantive and procedural limits upon that authority when it
is exercised in relation to personal wireless service
facilities . . . .” APT Pittsburgh Ltd. P'ship
v. Penn Twp. Butler Cty. of Pa., 196 F.3d 469,
473 (3d Cir. 1999) (citing 47 U.S.C. § 332(c)(7)).
Procedurally, the parties disagree over whether the
Board's decision was supported by substantial evidence as
required by 47 U.S.C. § 332(c)(7)(B)(iii). (Doc. 28, at
10; Doc. 25, at 4-5). Substantively, the parties take issue
with whether the Board's denial had the effect of
prohibiting wireless service in violation of 47 U.S.C. §
332(c)(7)(B)(i)(II). (Doc. 28, at 28; Doc. 25, at 5).
Additionally, Verizon presents a separate claim as an appeal
of the Zoning Board's decision, claiming the Court's
supplemental jurisdiction. Because both the TCA substantial
evidence claim and the state law zoning appeal claim hinge on
the same “substantial evidence” standard, the
Court will address them first. See Horvath Towers III,
LLC v. Zoning Hearing Bd. of Butler Twp., 247 F.Supp.3d
520, 535 (M.D. Pa. 2017). The Court will then address
Verizon's prohibition of service claim.
Substantial Evidence Claims
TCA Substantial Evidence Claim
contends that the Board's denial of its application
violates Section 332(c)(7)(B)(iii) of the TCA because it is
not supported by substantial evidence. Verizon sets forth
several grounds in support of its argument: (1) that the
Board misapplied the standards and burdens of proof; (2) that
the decision is based on requirements not contained in the
Ordinance; (3) that the Board's conclusion that Verizon
failed to present evidence that the site conformed to all
zoning requirements if each building were located on a
separate lot is not supported by substantial evidence; and
(4) that neither the objectors nor the Board established to a
high degree of probability that the proposed use would
substantially affect the community's health, safety, and
welfare. (Doc. 28, at 10-27). On the other hand, the Board
contends that Verizon did not meet all of the Ordinance
requirements. (Doc. 25, at 7-16). The Board also contends, in
the alternative, that even if Verizon met the Ordinance
requirements, “there has been substantial evidence
presented by the Objector (to a high degree of probability)
that the use is detrimental to the health, safety and general
welfare of the present or future residents of Smithfield
Township including the individuals who utilize the
Stroudsburg-Pocono Airport such as the fixed wing pilots,
rotary wing pilots, and the parachuters (mostly novice
jumpers coming from urban areas).” (Id. at
16.). On those grounds, the Board contends that its decision
was supported by substantial evidence. (Id.). In
reviewing the written decision and record, the Court finds
that the Board's decision was not supported by
substantial evidence for the reasons discussed herein.
332(c)(7)(B)(iii) of the TCA states, “[a]ny decision by
a State or local government or instrumentality thereof to
deny a request to place, construct, or modify personal
wireless service facilities shall be in writing and supported
by substantial evidence contained in a written record.”
47 U.S.C. § 332(c)(7)(B)(iii). “The substantial
evidence test applies to findings made by a zoning hearing
board under the locality's own zoning
requirements.” Ogden Fire Co. No. 1 v. Upper
Chichester Twp., 504 F.3d 370, 379 (3d Cir. 2007). The
Third Circuit has opined on the “substantial
Substantial evidence is a legal term of art. It “does
not mean a large or considerable amount of evidence,
‘but rather such evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct.
2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed.
126 (1938)). A court reviewing under the substantial evidence
standard “is not to weigh the evidence contained in
that record or substitute its own conclusions for those of
the fact finder, ” but rather is to “determine
whether there is substantial evidence in the record as a
whole to support the challenged decision.” AT&T
Wireless v. Zoning Bd. of Adjustment of the Borough of Ho-
Ho-Kus, 197 F.3d 64, 71 (3d Cir.1999).
Omnipoint Commc'ns Enters., L.P. v. Zoning Hearing
Bd. of Easttown Twp., 248 F.3d 101, 106 (3d Cir. 2001).
[t]he Court must “overturn the board's decision . .
. if it cannot conscientiously find that the evidence
supporting that decision is substantial, when viewed in the
light that the record in its entirety furnishes, including
the body of evidence opposed to the [b]oard's
view.” SBA Commc'ns, Inc., 112 F.Supp.2d
at 237 (quoting BellSouth Mobility Inc. v. Gwinnett
Cty., 944 F.Supp. 923, 928 (N.D.Ga. 1996)). If the Court
finds that even one reason given for the denial is
supported by substantial evidence, the decision of the local
zoning body cannot be disturbed. See, e.g., Id. at
N.Y. SMSA Ltd. P'ship v. Town of Oyster Bay Zoning
Bd. of Appeals, 2010 WL 3937277, at *4 (E.D.N.Y.
September 30, 2010) (emphasis added).
the standard is deferential to the zoning board, “it is
not a rubber stamp” and a zoning board “is not
free to prescribe what inferences from the evidence it will
accept and reject, but must draw all those inferences that
the evidence fairly demands.” Glob. Tower,LLC. v. Hamilton Twp., 897 F.Supp.2d 237, 251 (M.D.
Pa. 2012) (quoting T-Mobile Cent. v. Unified Gov't of
Wyandotte Cnty., 546 F.3d 1299, 1307 (10th Cir. 2008)).
“[I]f the record as a whole contains conflicting
evidence, the fact-finder must adequately explain its reasons
for rejecting or discrediting competent ...