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Northeast Pennsylvania SMSA LP v. The Smithfield Township Board of Supervisors

United States District Court, M.D. Pennsylvania

January 15, 2020

NORTHEAST PENNSYLVANIA SMSA LP, d/b/a VERIZON WIRELESS, Plaintiff,
v.
THE SMITHFIELD TOWNSHIP BOARD OF SUPERVISORS, Defendant.

          MEMORANDUM OPINION

          ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is 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 substantial evidence.

         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.

         II. Factual and Procedural History[1]

         Verizon 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.[2] (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).

         Verizon 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).

         On 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).

         The 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 ¶¶ 29-30).

         On June 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.

         In its 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).

         Verizon's “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).

         The 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).

         With 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 ¶ 27).

         Additionally, 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).

         Next, 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).

         The 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).

         The 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).

         Additionally, “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).

         The 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).

         Finally, 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).

         After making its findings of fact, the Board concluded that the requirements of the Ordinance were not met for the following reasons:

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).

         Finally, 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).

         III. Standard of Review

         Through 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 (1986).

         The 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).

         However, “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 omitted).

         In this 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).

         IV. Analysis

         The 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.

         1. Substantial Evidence Claims

         A. TCA Substantial Evidence Claim

         Verizon 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.

         Section 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 evidence” standard:

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). Further,

[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 237.

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).

         While 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 ...


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