Opinion
No. 1339 C.D. 2012
06-19-2013
Wireless Development Group, LLC, Appellant v. Penn Township Zoning Hearing Board and Township of Penn
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Wireless Development Group, LLC (WDG) appeals from the Order of the Court of Common Pleas of Butler County (trial court) that affirmed the decision of the Penn Township (Township) Zoning Hearing Board (ZHB). In its decision, the ZHB denied WDG's validity challenge to the Township's Zoning Ordinance as it applies to the placement of cellular communications towers and denied WDG's claim that the Zoning Ordinance violates Section 332(c)(7)(B)(i)(II) of the Federal Telecommunications Act of 1996 (Telecommunications Act), 47 U.S.C. § 332(c)(7)(B)(i)(II) (Section 332(c)(7)(B)). WDG argues that the Zoning Ordinance is de facto exclusionary of cellular towers and that the trial court erred in determining that WDG failed to prove that there was a violation of Section 332(c)(7)(B) because of a significant gap in cellular coverage.
Section 332(c)(7)(A) provides that municipalities retain the power to regulate the zoning and placement of cellular telecommunications facilities, but Section 332(c)(7)(B) provides that the regulation of construction, placement or modification of a cellular facility may not operate so as to prohibit the provision of cellular service. 47 U.S.C. § 332(c)(7)(A), (B)(i)(II).
On July 9, 2010, WDG filed an application for a variance (Variance Application) from the requirements of Section 15.1.17 of the Zoning Ordinance, which provides for cellular communications towers as a conditional use in the M Planned Light Industrial Zoning District (M Zoning District). WDG sought variances from the provisions of Section 15.1.17 which require a buffer of the radius of the height of the proposed tower, set a 200-foot cap on the height of a tower, and set a minimum lot size to be equal in width and depth to the height of the tower. (Variance Application at 4, R.R. at 8a (seeking variances from Zoning Ordinance Section 15.1.17(A), (D), (G)).) The property (Proposed Site) on which WDG sought variances to construct its 275-foot cellular communications tower is a single-family dwelling in the M Zoning District. The Proposed Site is 200 feet wide by 440 feet deep.
The ZHB held hearings on the Variance Application on October 18, 2010 and November 15, 2010. WDG presented the testimony of several witnesses. Bob Monfredi, a radio frequency engineer, testified about the height necessary for a cellular tower to provide adequate coverage and how they selected the Proposed Site as the best available site although he stated that another site, which is owned by Spang & Company (the Spang Property), would be suitable if it could be acquired. (Hr'g Tr. at 30-32, 61, October 18, 2010, R.R. at 42a, 50a.) Mike Sullivan, a radio frequency engineer for Verizon Wireless, testified about signal levels in various parts of the Township and that Verizon had a lack of signal coverage in parts of the Township that could not be resolved using only existing towers. (Hr'g Tr. at 63, 68-76, R.R. at 50a - 52a-1.) Frank Matis, the director of emergency services for Butler County, testified that gaps in coverage cause many dropped calls to emergency services, particularly along Route 8, a major highway in the Township. (Hr'g Tr. at 88-89, R.R. at 55a - 56a-1.) WDG's counsel, as well as one of WDG's principals, testified about their unsuccessful attempts to lease or purchase the Spang Property on which to construct a cellular tower. (Hr'g Tr. at 92-96, R.R. at 56a-1 - 56a-2.) John Gyurina, a construction contractor for and member of WDG, testified that cellular towers are currently designed and constructed to collapse upon themselves in the event of structural failure rather than fall to one side. (Hr'g Tr. at 98-100, R.R. at 57a.) Mike Reilly, the vice chairman and general counsel of Spang, testified that Spang had been unable to reach an agreement with companies wishing to lease only part of the Spang Property for construction of cellular towers because Spang's primary concern was selling the Spang Property for commercial and residential development. (Hr'g Tr. at 9, 11-13, 16-18, November 15, 2010, R.R. at 64a-66a.) Mr. Reilly testified that, while Spang was willing to sell smaller parts of the Spang Property for commercial development along a highway in the Township, Spang was generally trying to sell the Spang Property off in larger parcels. (Hr'g Tr. at 18, R.R. at 66a.)
The Spang Property consists of approximately 625 acres divided into a number of parcels. (Hr'g Tr. at 9, November 15, 2010, R.R. at 64a.)
On January 25, 2011, the ZHB issued its decision denying the Variance Application and holding that WDG failed to show a hardship to the Proposed Site and failed to show that a tower would not alter the character of the neighborhood. There was no appeal of the ZHB's decision denying the Variance Application. Subsequently, on February 9, 2011, WDG filed a validity challenge to the Zoning Ordinance, arguing that it is de facto exclusionary of cellular communications towers and that it violates the Telecommunications Act.
The ZHB held hearings on the validity challenge on March 29, 2011, April 26, 2011, and May 31, 2011. Upon request from WDG, the record from the Variance Application was made part of the record in the current matter. WDG again presented the testimony of Mr. Monfredi, Mr. Sullivan, Mr. Gyurina, Attorney Ayoob, and Mr. Reilly. Mr. Monfredi provided more detailed testimony about the gap in wireless coverage in the Township as follows. The gap, as shown by computer modeling predictions, affected both of the frequency bands used by the major carriers, at 850 MHz and 1900 MHz. (Hr'g Tr. at 28-31, March 29, 2011, R.R. at 93a-94a.) One of the areas affected by the gap in coverage was Route 8. (Hr'g Tr. at 22-23, R.R. at 92a.) The sites in the Township that could resolve the coverage issue and meet the requirements of the Zoning Code are part of the Spang Property. (Hr'g Tr. at 28-29, R.R. at 93a-94a.) Other sites in the M Zoning District were too low and would require towers much taller than 200 feet to be useful. (Hr'g Tr. at 29-31, R.R. at 94a.) Wireless technologies other than a cellular tower, such as a pole-to-pole system, would not be effective in resolving the coverage gap. (Hr'g Tr. at 40-42, R.R. at 96a-97a.)
Mr. Gyurina's testimony was substantially similar to that he gave in the hearings on the Variance Application.
Mr. Sullivan also testified that there was a significant coverage gap in the Township, not only on computer modeling predictions, but also according to studies he had performed on signal strength in the Township by driving through the Township with a Verizon telephone measuring signal strength. (Hr'g Tr. at 51-52, R.R. at 99a.) Mr. Sullivan testified that other technology options, such as a pole-to-pole system, would not be an adequate solution to the coverage gap and that over the course of five years Verizon had received approximately 36 complaints about dropped calls in the Township. (Hr'g Tr. at 21-23, 29, April 26, 2011, R.R. at 114a, 116a.)
The Township presented the testimony of its Land Use Administrator, Clinton A. Bonetti. Mr. Bonetti testified that there were approximately 2000 acres of land in the M Zoning District, and that there were about 27 parcels of land northwest of the Township that were in the M Zoning District. (Hr'g Tr. at 31, R.R. at 116a.) He testified that Spang owns 7 of these parcels of land, (Hr'g Tr. at 31, R.R. at 116a), and that another 10 parcels are at least 400 feet by 400 feet, or approximately 2 acres in size, (Hr'g Tr. at 32, R.R. at 116a).
Finally, the Township offered the testimony of Mr. Reilly, who, in the first hearing on the validity challenge, initially reiterated his testimony from the Variance Application hearings. (Hr'g Tr. at 79, 82-83, March 29, 2011, R.R. at 106a-07a.) At the second hearing on the validity challenge, Mr. Reilly testified that Spang had received interest in large portions of the Spang Property and had entered into a gas lease for the entirety of the Spang Property. (Hr'g Tr. at 42-43, April 26, 2011, R.R. at 119a.) He testified that, in the future, once the details of the gas lease had been finalized and other portions of the Spang Property sold, he believed that Spang would be willing to lease part of the remaining property for a cellular tower. (Hr'g Tr. at 44-45, R.R. at 119a-20a.)
On June 1, 2011, the ZHB issued its decision holding that the Zoning Ordinance was not exclusionary and did not violate Section 332(c)(7)(B). The ZHB held that WDG failed to show that the Zoning Ordinance is exclusionary with regard to cellular towers because it failed to quantify the extent and impact of the coverage gap and, thus, the need for the cellular tower, and because the Spang Property, which WDG repeatedly stated would be the best place for a cellular tower and could conform with the requirements of the Zoning Ordinance, would soon be available. (ZHB Decision, Conclusions of Law (COL) ¶¶ 24-25, 28.) The ZHB held that WDG failed to show a violation of the Telecommunications Act because WDG presented evidence only of customer complaints of inadequate service from one provider, did not provide context to show whether the complaints represented a large or small percentage of its customers in the Township, and WDG did not present drive tests from multiple providers. (COL ¶¶ 36-37.) The ZHB also noted that WDG did not adequately show the size of the area affected. (COL ¶ 39.) WDG appealed to the trial court.
On June 18, 2012, the trial court issued a Memorandum Opinion and Order affirming the ZHB. The trial court held that WDG failed to show that the Zoning Ordinance was exclusionary because it acknowledged that sites on the Spang Property could satisfy the Zoning Ordinance's requirements, would be suitable for a cellular tower, and the Spang Property would soon be available. (Trial Ct. Op. at 6.) The trial court also held that WDG failed to show a violation of Section 322(c)(7)(B) because WDG failed to adduce hard data to support the significance of the gap in coverage in the Township. (Trial Ct. Op. at 8-9.) WDG now appeals to this Court.
Where, as here, the trial court has taken no additional evidence, this Court's review:
is limited to determining whether the zoning hearing board abused its discretion or committed an error of law. An abuse of discretion will be found only if the zoning board's findings are not supported by substantial evidence, that is, such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
On appeal, WDG argues that the ZHB erred in holding that: (1) the Zoning Ordinance is not de facto exclusionary of cellular towers; (2) the Zoning Ordinance does not violate Section 332(c)(7)(B) of the Telecommunications Act; and (3) there is not sufficient evidence to support the ZHB's finding that the Spang Property was available for placement of a cellular tower.
WDG argues that there is no location in the Township where the Zoning Ordinance would permit the placement of a cellular tower and where such a tower would resolve the gap in wireless coverage. We begin by noting that zoning ordinances enjoy a presumption of validity. Borough of Edgewood v. Lamanti's Pizzeria, 556 A.2d 22, 24 (Pa. Cmwlth. 1989). A challenger may overcome this presumption by showing "that the ordinance totally excludes an otherwise legitimate use." Appeal of Farrell, 481 A.2d 986, 989 (Pa. Cmwlth. 1984). A challenger may establish a de facto exclusion by showing that, while a zoning ordinance facially permits a use, when applied the ordinance "acts to prohibit the use throughout the municipality." Id. In this case, the trial court and the ZHB held that the Zoning Ordinance did not effectively prohibit cellular towers throughout the Township because the Spang Property would be available for the placement of a cellular tower and WDG failed to show that all other properties in the M Zoning District were unsuitable for cellular towers.
WDG argues that the current case is substantially similar to Edgewood. In Edgewood, the challenger argued that the Borough of Edgewood's recently-amended zoning ordinance had the practical effect of prohibiting restaurants where it permitted restaurants only in the D-7 zone, which "contemplated development of the entire site as a unified whole and required a contiguous area of land not less than thirty acres." Edgewood, 556 A.2d at 24 (footnote omitted). Only one parcel in the Borough of Edgewood met this requirement and it carried a sale price of $5 million. Id. Here, the Zoning Ordinance limits the height of cellular towers to 200 feet, requires that a communications tower be set back from property lines a distance equal to its height, and requires a minimum lot size equal to a radius with a diameter equal to the height of the tower. (Zoning Ordinance Section 15.1.17(A), (D), (G).) WDG argues that due to topology and signal issues, in order to be of use, any tower would have to be taller than 200 feet, and any tower not on the Spang Property would have to be placed such that it would violate the setback and minimum lot size requirements.
However, the current matter is distinguishable from Edgewood. In Edgewood, there was only one parcel of land that met the zoning ordinance's highly unusual requirement of thirty acres for development of a restaurant. In this case, by contrast, the Township's Land Use Administrator testified that there are approximately 2000 acres in the M Zoning District. (Hr'g Tr. at 31, April 26, 2011, R.R. at 116a.) In the northwest portion of the Township alone, where WDG wishes to build a cellular tower, Mr. Bonetti identified four parcels that were not part of the Spang Property, but were large enough to accommodate a cellular tower conforming to the Zoning Ordinance. (Hr'g Tr. at 36, R.R. at 117a.) Mr. Monfredi explained that the northwestern portion of the M Zoning District was the best option for WDG, primarily because the other portions of the M Zoning District are in low-lying areas where a tower would not be able to provide good coverage. (Hr'g Tr. at 30-32, October 18, 2010, R.R. at 42a.) Mr. Monfredi admitted that he did not examine parcels other than the Proposed Site in as much detail to determine whether they could satisfy the gaps in coverage with which WDG was concerned. (Hr'g Tr. at 49, R.R. at 47a.) The record does not reveal testimony specific to the four non-Spang properties identified by Mr. Bonetti regarding why these properties are unsuitable for a cellular tower. In addition, some of Mr. Monfredi's testimony seems to indicate that other areas in the M Zoning District might be feasible in terms of a cellular tower, even if not as ideal as the Proposed Site:
. . . the Old Plank Road site [near the center of the Township] does cover Route 8. It does cover a lot of the inadequate area as the coverage sits now, but it doesn't cover quite as much or nearly as much as the W.D.G. site and doesn't provide a handoff boundary to other sites as well as the W.D.G. site . . . .(Hr'g Tr. at 58, R.R. at 49a (emphasis added).) Thus, the record supports the ZHB's holding that WDG did not meet its heavy burden of proving that there are no sites within the M Zoning District that could both permit a cellular tower and be technically suitable and, therefore, that the cellular tower use is totally excluded from the municipality.
We next address WDG's argument that the ZHB erred in holding that the Zoning Ordinance does not violate Section 332(c)(7)(B). Section 332(c)(7) states that the Telecommunications Act is not to infringe on the local authority to regulate the placement of cellular towers unless a denial by a municipality has the effect of precluding cellular service:
(A) General authority. Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations.
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof--
47 U.S.C. § 332(c)(7)(A), (B)(i)(II). In APT Pittsburgh Limited Partnership v. Penn Township, 196 F.3d 469 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit considered a similar challenge to the same Zoning Ordinance at issue in this case. The District Court had found in favor of APT Pittsburgh Limited Partnership (APT) and directed the Township to permit APT to erect its cellular tower. Id. at 471. The Third Circuit reversed, holding that APT had failed to show that the Zoning Ordinance was exclusionary because, while APT had shown that it had difficulty finding M-zoned property on which to erect a cellular tower, it had not shown that other carriers were also unable to find available M-zoned property. Id. at 477. The Third Circuit also noted that, while APT had presented evidence that it had been unable to lease part of the Spang Property, APT did not adduce evidence regarding the details of this attempt. Id. Finally, the Third Circuit held that APT failed to show a violation of Section 332(c)(7)(B) because it did not present any evidence regarding any gap in coverage by other service providers. Id. at 480-81.. . . .
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
Similarly in this case, as noted above, WDG failed to show that there are no properties in the M Zoning District that are feasible, if not ideal, for the placement of one or more cellular towers that might resolve the gap in coverage. Therefore, the ZHB did not err in holding that the Zoning Ordinance does not violate Section 332(c)(7)(B).
Due to our holding on this issue and the previous issue, we do not need to reach the issue of whether there is substantial evidence in the record for the ZHB's finding that the Spang Property is available for placement of a cellular tower. --------
Accordingly, we affirm the trial court's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, June 19, 2013, the Order of the Court of Common Pleas of Butler County in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa. Cmwlth. 2002) (citations omitted).