DEPOLO v. BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP et al

Filing 42

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE STEWART DALZELL ON 5/18/2015. 5/18/2015 ENTERED AND COPIES MAILED TO PRO SE'S AND E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY J. DEPOLO
v.
BOARD OF SUPERVISORS OF
TREDYFFRIN TOWNSHIP et al.

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CIVIL ACTION

NO. 14-6689

MEMORANDUM
Dalzell, J.

May 18, 2015

Ham radio aficionado Jeffrey J. DePolo sued the Tredyffrin Township Board of
Supervisors and its members (collectively, the “Board”) and the Township’s Zoning Hearing
Board of Appeals and its members (collectively, the “ZHBA”) over their refusal to let him build
a 180-foot radio tower on his property.1 He contends that federal law as articulated in an FCC
regulation and a Pennsylvania state law adopting the federal standard both preempt the
township’s antenna height restrictions. The Board and ZHBA filed separate motions to dismiss
and, for the reasons set forth below, we will grant both motions.
Because we grant the defendants’ motions dismissing this action, we will deny as moot
the motion for reconsideration which certain of DePolo’s neighbors filed after we denied them
leave to intervene in this action.

I.

Standard of Review
A defendant moving to dismiss under Fed. R. Civ. P. 12(b)(6) bears the burden of

proving that a plaintiff has failed to state a claim for relief. See Fed. R. Civ. P. 12(b)(6); see also
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). A Rule 12(b)(6) motion tests the
1

With additional antenna, the proposed tower’s height would be about 190 feet. Cmplt., Ex A at
11.

sufficiency of the allegations contained in the complaint and “[t]he question, then, is whether the
facts alleged in the complaint, even if true, fail to support the claim.” Kost v. Kozakiewicz, 1
F.3d 176, 183 (3d Cir. 1993) (internal citation and quotation marks omitted). As the Supreme
Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009), in order to survive a Rule 12(b)(6) motion “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’,” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged,” Iqbal, 556 U.S. at 678.
Our Court of Appeals obliges district courts considering a motion to dismiss under Fed.
R. Civ. P. 12(b)(6) to engage in a two-part analysis:
First, the factual and legal elements of a claim should be separated.
The district court must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions. Second, a
district court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible
claim for relief.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at
679).
When deciding a Rule 12(b)(6) motion to dismiss, the Court generally looks to the facts
alleged in the complaint and its attachments, without reference to any other part of the record.
See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir.1994). All wellpleaded allegations of the complaint must be taken as true and interpreted in the light most
favorable to the plaintiff and all inferences must be drawn in his favor. See McTernan v. City of
York, PA, 577 F.3d 521, 526 (3d Cir. 2009) (internal quotation marks omitted). To survive a
motion to dismiss, a plaintiff must allege facts that “raise a right to relief above the speculative
2

level on the assumption that the allegations in the complaint are true (even if doubtful in fact).”
Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555).

II.

Factual And Procedural Background
We draw our recital of the factual background from the plaintiff’s complaint and the

factual findings in the Zoning Board’s decision denying DePolo's application for what
effectively would be a 190-foot tower, but granting him a permit for a 65-foot tower. DePolo
appended the Zoning Board decision as an Exhibit to the complaint.
On November 25, 2013, the plaintiff prepared and filed a request for a building permit for
a “180-foot self-supporting antenna system” in order to pursue his amateur radio operations from
his residence on Horseshoe Trail, Malvern, Pennsylvania.2 Cmplt. at ¶¶ 14, 24. Because of the
many tall trees on his property and the hilly terrain, that height was the “minimum height
necessary” to permit communication on the radio frequencies of interest to him. Id. at ¶¶ 28, 29.
On February 4, 2014, after the Zoning Officer denied his permit, he appealed to the ZHBA
requesting a permit for an antenna installation in excess of the 35-foot ordinance limit. Id. at ¶
25; see also Ex. A at 26. The local zoning ordinance at issue, Section 208-18.G of the
Tredyffrin Township Zoning Ordinance, establishes area, bulk and height restrictions for the R1/2 residential district in which DePolo lives and provides that “[t]he height of any building shall
not exceed 35 feet.” Ex. A at 11. Section 208-113, Building height projections, provides in
relevant part that “antennas and similar projections shall be included in calculating the height of
a building,” with certain conditions. Id.
The ZHBA held public hearings on March 27, April 30, May 5, May 22, and June 26,
2014 to take evidence and consider DePolo’s application. Cmplt. at ¶ 26. The ZHBA reviewed
2

The plaintiff filed the zoning permit application with his wife but he is the sole plaintiff in this
action as she is not a licensed radio operator. See Pl. Resp. to ZHBA MTD at note 1.
3

the Zoning Officer’s denial of DePolo’s permit application and the Officer’s offer to allow
DePoloto to build a 65-foot tower in recognition of a Pennsylvania law fostering amateur radio
operation. Ex. A at 19. DePolo contended at the hearing that the Zoning Officer erred in
denying the permit for a 180-foot tower. Id. He argued that the Federal Communications
Commission (“FCC”) rule known as PRB-1, Federal Preemption of State and Local Regulations
Pertaining to Amateur Radio Facilities, 101 F.C.C. 2d 952 (1985), adopted at 47 CFR §97.15(b),
(hereinafter “PRB-1”) preempts the Township from restricting antenna height. Id. He declined
to reduce the height of the proposed tower he sought to build. Id. at 15.
The ZHBA granted party status to DePolo’s Horseshoe Trail neighbors, Schuylkill
Township, the National Park Service of the United States Department of the Interior -representing Valley Forge National Historical Park (“Valley Forge”) -- and an association of 800
homeowners. Id. at 2. The ZHBA admitted into evidence sixteen exhibits on its own behalf,
fifty-eight exhibits on DePolo’s behalf, twenty-four exhibits on behalf of the Horseshoe Trail
neighbors, one on behalf of Schuylkill Township, and two on behalf of Tredyffrin Township. Id.
at 2-9.
The ZHBA found that the plaintiff’s property at 1240 Horseshoe Trail is a 2.9 acre
wooded lot located in the Township’s R-1/2 residential district. Id. at 10. There is also a 200foot PECO tower and noncommercial 90-foot tower along Horseshoe Trail in Schuylkill
Township. Id. In the summer of 2000, DePolo purchased a home at 1465 Horseshoe Trail,
Schuylkill Township, Chester County, and applied for a building permit to build a 170-foot radio
tower on the property, which Schuylkill Township denied on July 26, 2000 and he appealed to
the Zoning Board. Id. On October 31, 2000, the Schuylkill Township Zoning Board authorized
DePolo to build the 170-foot tower and appeals of that decision were dismissed by the Court of

4

Common Pleas and the Commonwealth Court. Id. at 10, 11. DePolo never erected that tower.
Id. at 11. He subsequently bought the present property in Tredyffrin Township. Id.
The ZHBA found that the tower DePolo seeks to build on his personal property was 15
feet wide at its base and about a yard across between the 120-foot and 180-foot marks and was to
be installed about thirty-five to forty feet from the southeast corner of the DePolo home. Id. at
11, 12. The proposed tower had no guy wires as it was to be self-supporting and no beacon as it
was below the Federal Aviation Administration’s 200-foot threshold. Id. at 12. DePolo, who has
held an amateur radio license since 1988, intended to use the tower for non-commercial
purposes. Id. Clear line of sight works best for all frequencies. Id.
The ZHBA also made factual findings that DePolo could currently communicate at VHF,
UHF and microwave frequencies with two seventeen-foot antennas (one of which was mounted
to the top of a ten-foot basketball stand). Id. at 13. A 65-foot tower with a seven megahertz
antenna would enable him to reach Ireland, Portugal, most of Spain, parts of North Africa and
parts of France with a 40% reliability threshold (a term not defined in the ZHBA decision), a
threshold that would only increase to 50% were the 180-foot tower permitted. Id. It also found
that a 65-foot tower with a fourteen megahertz antenna would allow DePolo to reach Belgium,
Amsterdam, all of Spain and North Africa with a 40-50% reliability threshold, which would only
increase by ten percentage points were he permitted to build the 180-foot tower. Id. at 13, 14.
The ZHBA also found that amateur radio operators can communicate over the Internet or by
using amateur satellite antennas. Id. at 14.
The ZHBA found that the proposed 180-foot tower was “not compatible” with the
surrounding residential neighborhood and “would create an adverse visual impact on the
neighborhood.” Id. at 15. It also found that the tower’s “height, mass, and latticework design”

5

was “of a type universally associated with. . . a factory area or industrialized complex” and
posed a safety hazard to neighboring properties because its fall radius extended well into those
properties. Id. Valley Forge objected to the application because the proposed tower “would be
visible from a key viewpoint in Valley Forge National Historical Park.” Id. “Long views within
and beyond the Valley Forge National Historical Park are [a] historic resource and an important
aspect of the visitor experience.” Id. at 16.
The ZHBA reviewed state and federal regulations touching on the zoning appeal. Id. At
the state level, Section 302 of the General Local Government Code provides that municipalities
regulating antenna height “shall impose only the minimum regulations necessary to accomplish
the legitimate purpose of the municipality,” id. (quoting 53 Pa. Cons. Stat. Ann. § 302(a)).
Municipalities may impose necessary safety regulations but must accommodate amateur radio
communications, inter alia, by not restricting radio antenna height to less than sixty-five feet
above ground level. Id. Municipalities may also take action to “protect or preserve a historic, a
historical or an architectural district that is established by the municipality or pursuant to Federal
or State law.” Id. (quoting 53 Pa. Cons. Stat. Ann. § 302(c)).
And, at the federal level, the ZHBA considered PRB-1’s “policy of limited preemption of
state and local regulation.” Ex. A. at 16. The ZHBA interpreted this regulation to prohibit “local
municipalities from precluding amateur radio communications”, but observed that the FCC
expressly declined to regulate the height of radio antenna towers. Id. at 16-17. PRB-1, the
ZHBA concluded, directs municipalities to “accommodate reasonably” such communications
without creating any rights for the amateur radio operators themselves. Id. at 17. The FCC
revisited the limited preemption in 1999 and decided not to depart from its policy of “leaving the
specifics of zoning regulation to the local authority, including provisions concerning the height

6

of an amateur antenna.” Id.3 The ZHBA also considered the FCC’s Second Modification, in
which the FCC explained at length what it meant by “reasonable accommodation” and rejected
local government efforts to restrict amateur radio communications by restricting certain kinds of
antennas not at issue here. Id. at 18. The ZHBA pointed to the FCC’s recognition that “a local
community that wants to preserve residential areas as livable neighborhoods may adopt zoning
regulations that forbid the construction and installation in a residential neighborhood of the type
of antenna that is commonly and universally associated with those that one finds in a factory area
or an industrialized complex” and can do so without failing to reasonably accommodate the ham
operator. Id.4
“This Board looks to these regulations and the interpretations thereof, as expressed by the
FCC in the First Modification and Second Modification, for guidance in the application of the
limited preemption of local regulation of amateur radio communications,” the ZHBA stated. Id.
The ZHBA found that the R-1/2 residential district in which DePolo lives is designed
under Zoning Ordinance §208-16 “to minimize disruption to notable features such as the
Exceptional Value Valley Creek Watershed. . . Valley Forge Mountain, and the natural, scenic
and historic character of the Township.” Id. at 19. It also found that the reasonable
accommodation required under the Second Modification did not “require[] a municipality to
allow an amateur operator to erect any antenna [he] desires,” id. at 20 (reviewing cases), such as
a 180-foot tower “on a property not wide enough to ensure that, if the proposed tower were to
3

Quoting Modification and Clarification of Policies and Procedures Governing Siting and
Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section
97.15 of the Commission’s Rules Governing the Amateur Radio Service, 14 F.C.C.R. 19413,
19416 (1999) (hereinafter “First Modification”).
4
Quoting Modification and Clarification of Policies and Procedures Governing Siting and
Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section
97.15 of the Commission’s Rules Governing the Amateur Radio Service, 15 F.C.C.R. 22151,
22154 (2000) (hereinafter “Second Modification”).
7

fall, it would not impact any neighboring properties.” Id. at 22.
The ZHBA concluded that the Township had made a reasonable accommodation
contemplated by the FCC by allowing a 65-foot tower -- which DePolo declined despite “ample
evidence” it would permit him to engage in extensive radio communications. Id. at 23. The
ZHBA also concluded that the Tredyffrin Township Zoning Ordinance limiting the maximum
height of structures in the R-1/2 residential district to thirty-five feet was not invalid because
DePolo had the opportunity to seek a variance that he withdrew by stipulation. Id. at 23-24.
On October 23, 2014 the ZHBA issued its decision denying DePolo’s application for the
180-foot tower but granting him a permit for a 65-foot tower. Cmplt. at ¶ 30; see also Ex. A at
26.
On November 21, 2014, DePolo sued the Tredyffrin Board of Supervisors and its
individual members as well as the ZHBA and its members. DePolo alleges that at no time
before, during, or after the hearings did the ZHBA or the Board attempt to negotiate with him.
Cmplt. at ¶ 27. He also alleges that a zoning officer not empowered to issue a permit suggested
he would be allowed a 65-foot structure but “which, for reasons demonstrated at the hearing. . .
would provide for a completely ineffective antenna height and would not allow the operation
applicant required.” Id. He contends, as he did at the hearings, that the height he requested is
“the minimum height necessary to permit [him] to achieve his communications goals in the very
high frequency [VHF], ultra high frequency [UHF], and super high frequency [SHF] as well as
other amateur radio bands, with the privileges granted to [him] by the FCC under his existing
license.” Id. at ¶ 28. He contends he needs the requested height because of the area’s tall trees
and rolling terrain. Id. at ¶ 29.
DePolo seeks a declaratory judgment that the Federal Communications Act of 1934, as

8

amended, and the FCC regulation promulgated at 47 CFR §97.15(b)5 preempt the Tredyffrin
Township zoning ordinances. He also seeks a judgment declaring that the ZHBA decision
violates the FCC provision and that the Township’s zoning ordinance, facially and as applied,
violates Pennsylvania state law governing municipal regulations of antenna height. He seeks a
court order permitting his 180-foot tower as well as relief under Pennsylvania state statutes.
Cmplt. at 10-13.
On December 31, 2014, the ZHBA filed a motion to dismiss and the Board did likewise
on January 23, 2015. On January 8, 2015, a group of DePolo’s neighbors resident in Schuylkill
Township moved to intervene, as did Schuylkill Township the day after. We granted both
motions on January 22, 2015. On March 18, 2015, we denied a different group of DePolo’s
neighbors resident in Tredyffrin Township permission to intervene. They filed a motion for
reconsideration on March 31, 2015 which the ZHBA, its members and Schuylkill Township
support, and which DePolo opposes.

III.

Discussion
A.

The ZHBA’s Motion To Dismiss

The ZHBA moves to dismiss on several grounds.
It argues that Pennsylvania’s statutory scheme for processing challenges to zoning
5

47 CFR §97.15(b) provides
Except as otherwise provided herein, a station antenna structure
may be erected at heights and dimensions sufficient to
accommodate amateur service communications. (State and local
regulation of a station antenna structure must not preclude amateur
service communications. Rather, it must reasonably accommodate
such communications and must constitute the minimum practicable
regulation to accomplish the state or local authority's legitimate
purpose. See PRB-1, 101 FCC 2d 952 (1985) for details.
9

ordinances provides that the ZHBA, an administrative-adjudicatory agency, is empowered to
hear appeals from Zoning Officer decisions, and a landowner dissatisfied with the Board’s
decision has a right to appeal to the Court of Common Pleas. Mem. of Law at 8, 9. It contends
we should therefore exercise our discretion not to hear this declaratory judgment action in light
of the state and local issues raised and the Pennsylvania General Assembly's comprehensive
statutory scheme for zoning appeals. Id. at 10. It also argues that we should abstain from
hearing a case that would impede the “rightful independence of the state governments.” Id.
(quoting R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941)). It further maintains
that DePolo erred by joining individual ZHBA members as defendants and failing to join
indispensable parties, such as objectants who testified at the zoning hearing. Id. at 14-17.
Lastly, the ZHBA contends that DePolo has failed to assert a federal preemption claim
because the governing federal law on which he rests his claim, the FCC’s PRB-1 rulemaking,
does not preempt the Township ordinance.6 Id. at 17. It urges that we rely on Williams v. City
of Columbia, 906 F.2d 994 (4th Cir. 1990), Evans v. Bd. of Cnty. Comm’rs of Cnty. of Boulder,
Colo., 994 F.2d 755 (10th Cir. 1993), and Pentel v. City of Mendota Heights, 13 F.3d 1261 (8th
Cir. 1994), to find that the local ordinance is neither facially preempted nor preempted asapplied. Id. at 22-27.
DePolo responds in opposition that the Tredyffrin Township residential height ordinance
is preempted by PRB-1. Resp. to ZHBA MTD at 14. DePolo insists that the Township’s height
limitation for residential structures does not provide the reasonable accommodation required. Id.
at 20. And he contends that the FCC’s First Modification rejected balancing tests to limit
6

As to DePolo’s state claims, the ZHBA defendants argue we should decline to exercise
supplemental jurisdiction over them because DePolo’s federal preemption claim fails and he
lacks standing to raise a state law preemption claim. Mem. of Law at 30-33. They also seek to
strike a portion of the complaint as immaterial. Because we will dismiss on the basis of
DePolo’s federal preemption claim, we need not reach these marginal arguments.
10

antenna height that weigh the amateur radio operator’s interests against the municipality’s needs.
Id. at 21. DePolo also contends that we may hear his state law claims because they arise from a
common nucleus of operative facts. Id. at 25. He maintains that Pennsylvania enacted Section
302 to give amateur radio enthusiasts “all the protections of the federal regulation,” id. (emphasis
omitted), while imposing a 65-foot antenna height minimum on municipalities. Id. “Since the
Federal preemption claim is valid on its face,” he claims, we may assert jurisdiction over his
ancillary claims as well.7 Id. at 29. DePolo also contends that he has properly joined the
members of the ZHBA.8 Id. at 27-29. Finally, he urges that we grant him an injunction because
remand to the ZHBA would be futile. Id. at 38. 9
In reply, the ZHBA defendants point out that DePolo raises factual allegations not pled in
the complaint10 and misstates Pennsylvania’s “unique system of zoning, which provides no
opportunity for government bargaining with applicants.” Reply at 1. In a somewhat counterintuitive reversal, the ZHBA reply argues that, because Pennsylvania’s statutory scheme gives it
no authority to engage in negotiations and grants the Board no authority to issue directives to the
ZHBA, we should therefore not consider decisions regarding PRB-1 from other Circuit Courts
7

“[W]hen the parties present other claims that are so related to claims in the action that they
form part of the same case or controversy, a federal court may exercise supplemental jurisdiction
over them. Additionally, when matters incident to the disposition of the primary matter arise
before a court, the doctrine of ancillary jurisdiction permits district courts to decide them.”
Bryan v. Erie Cnty. Office of Children and Youth, 752 F.3d 316, 321 (3d Cir. 2014) (internal
citations and quotation marks omitted).
8
DePolo also argues that the ZHBA defendants wrongly claim that the Township classified his
residential district such that his property is exempt from 53 Pa. Cons. Stat. Ann. § 302, the
Pennsylvania statute governing municipalities’ regulation of antenna height. Resp. to ZHBA
MTD at 32-37.
9
In his response in opposition DePolo quotes liberally from PRB-1, First and Second
Modifications, but fails to cite appropriately to those documents.
10
In deciding a Rule 12(b)(6) motion, we must look “only to the facts alleged in the complaint
and its attachments without reference to other parts of the record.” Jordan v. Fox, Rothschild,
O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). We therefore exclude from this
Memorandum DePolo’s additional allegations in his responses to both motions to dismiss.
11

but rely only on the text of the regulation itself. Id. at 5.

B.

The Board Of Supervisors’ Motion To Dismiss

The Board asserts cognate reasons to dismiss DePolo’s suit.
First, it contends that the FCC’s regulation does not preempt the Commonwealth’s
zoning laws and, as a result, DePolo fails to state a claim on which relief may be granted. Board
MTD at 7. It argues that it is well recognized the FCC may preempt state action in three ways:
(1) by express language in a Congressional enactment, (2) by implication when a Congressional
scheme occupies the legislative field, or (3) by implication because of a conflict with a
Congressional enactment. Id. at 8; see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541
(2001) (internal citations omitted). The Board also maintains that those Circuit courts that have
considered whether PRB-1 preempts state or local law have concluded it does not. Board MTD
at 14.
[S]o long as a municipality makes reasonable accommodations for
the construction of an antenna, it does not violate PRB-1. Here,
because [the Board defendants] have attempted to accommodate
[DePolo’s] request, there is no basis upon which the ordinance in
question can be said to be preempted by or violate PRB-1.
Id. at 17. Observing that DePolo was offered a variance to build a 65-foot tower, which he
declined, the Board argues that his “refusal to participate. . . does not create a federal claim.” Id.
at 18.
It also argues that DePolo’s state law claims should be dismissed because he has not
suffered injury (as the Township granted him a variance for a 65-foot tower) and he therefore
lacks standing to pursue a claim under Section 302 of the Pennsylvania General Local
Government Code. Id. at 19. And the Board urges us to exercise our discretion to abstain from
hearing this matter under Pullman -- arguing nonetheless that DePolo’s federal and state
12

preemption claims lack merit -- because it maintains that DePolo raises “state law issues subject
to state law interpretation that could obviate the need to adjudicate his constitutional claim.” Id.
at 22, 23. Specifically, no Pennsylvania Court has yet interpreted Section 302. Id. at 23.
Determining how that law balances amateur radio operators' tower regulation with preservation
of Pennsylvania’s natural and historic spaces is, the Board argues, “an important state policy that
should be left to the state courts to resolve in the first instance.”11 Id. at 25.
Responding in opposition, DePolo argues that our Court of Appeals held in Izzo v.
Borough of River Edge, 843 F.2d 765 (3d Cir. 1988), that district courts may not abstain from
considering whether PRB-1 preempts state and local regulation. Resp. to Board MTD at 10. He
also largely reiterates the arguments he raised in opposition to the ZHBA defendants' motion.
He contests the Board defendants’ reliance on other Circuit Court decisions. Id. at 20-22. He
contends that the Township has no ordinance governing amateur radio communications towers,
but rather a fixed height limitation that applies to all residential structures, id. at 26, 27, which he
contends the FCC’s PRB-1 regulation preempts. Id. at 25. He also maintains we may consider
his state law argument pursuant to Section 302 which “incorporates the federal intent that
amateurs have the [antenna] height they can demonstrate is required.”12 Id. at 34. Finally,
DePolo argues that we have jurisdiction over his ancillary claims because the Township refused
to negotiate with him (and actively opposed his application), id. at 40, and his residential district
is not exempt from Section 302 as the Board maintains. Id. at 42.

11

The Board defendants also contend that DePolo duplicatively sued the individual Board
members and erroneously failed to join indispensable parties including Valley Forge and the
association of 800 homeowners. Board MTD at 25-28.
12
DePolo argues that he has properly joined the Board members in their official capacities and
joined all necessary parties. Resp. to Board MTD at 35-38.
13

C.

Applicable Law

We begin our inquiry with DePolo’s federal preemption claim that seeks relief through a
declaratory judgment.
The Declaratory Judgment Act provides that:
In a case of actual controversy within its jurisdiction . . . any court
of the United States, upon the filing of an appropriate pleading,
may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or
could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable as
such. . . . Further necessary or proper relief based on a declaratory
judgment or decree may be granted, after reasonable notice and
hearing, against any adverse party whose rights have been
determined by such judgment.
28 U.S.C. §§ 2201-2202. As the Supreme Court noted in Wilton v. Seven Falls Co., 515 U.S.
277 (1995), “[s]ince its inception, the Declaratory Judgment Act has been understood to confer
on federal courts unique and substantial discretion in deciding whether to declare the rights of
litigants,” id. at 286. Because a district court “may declare the right. . . of any interested party,”
28 U.S.C. §2201(a) (emphasis added), the Act vests district courts with greater discretion than is
permitted under abstention doctrines that limit district courts’ latitude to dismiss federal
proceedings in light of pending state actions. See Wilton, 515 U.S. at 286. With “the
Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court's
quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying
litigants.” Id. at 288. The Act is “ ‘an enabling Act, which confers a discretion on the courts
rather than an absolute right upon the litigant,’ ” id. at 287 (quoting Public Serv. Comm’n of
Utah v. Wycoff Co., 344 U.S. 237, 241 (1952)), and it is remedial not jurisdictional. We must
thus establish whether we have subject matter jurisdiction to act.
We have subject matter jurisdiction under our Court of Appeals’s teaching in Izzo.
14

There, an amateur radio operator sought injunctive relief, declaratory judgment, and damages in
the district court after a local zoning board denied him a variance to extend the height of his
transmission tower. 843 F.2d at 766. The court, concerned about its jurisdiction, construed
Burford v. Sun Oil Co., 319 U.S. 315 (1943), to require its abstention from a suit attacking local
zoning laws. Pre-Wilton, our Court of Appeals vacated and remanded for further proceedings. It
explained abstention is “the exception, not the rule.” Id. at 767. The Court then considered the
FCC order at issue -- the very regulation that DePolo contends preempts state and local
regulations here. “The Commission's order indicates an intent to apply a limited, rather than a
total preemption,” the Court held. “However, the order infuses into the proceedings a federal
concern, a factor which distinguishes the case from a routine land use dispute having no such
dimension.” Id. at 768. The Court concluded that the “express, narrow, and quite specific
federal provision” required the district court to retain jurisdiction and adjudicate the dispute.13
Id. at 769. We have power under Wilton to consider DePolo's claims and the motions now
before us.
We turn now to PRB-1, the FCC ruling on which DePolo hangs his preemption argument.
In PRB-1, a declaratory ruling made at the American Radio Relay League’s behest, the FCC
recognized the strong federal interest in promoting amateur radio operators, particularly for
emergency communication. PRB-1, 101 F.C.C. 2d at 959. “Upon weighing these interests, we
believe a limited preemption policy is warranted. State and local regulations that operate to
13

As stated above, our federalist system recognizes a finite number of preemption doctrines. See
Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98 (1992). Preemption analysis
starts with the assumption that the States’ historic police powers are not to be superseded absent
Congress’s manifest stated purpose, an assumption that “provides assurance that the federal-state
balance will not be disturbed unintentionally by Congress or unnecessarily by the courts.” Riegel
v. Medtronic, Inc., 552 U.S. 312, 334 (2008) (citing Jones v. Rath Packing Co., 430 U.S. 519,
525 (1977)). However, the Supreme Court has not yet construed how limited federal preemption
asserted in an agency's rulemaking fits within that federal-state balance.
15

preclude amateur communications in their communities are in direct conflict with federal
objectives and must be preempted.” Id. at 960. At the same time, the agency refused to entirely
preempt the field by specifying height limitations or local mechanisms to apply for variances or
conditional use permits. Id. Instead, the agency concluded that local ordinances involving
“placement, screening, or height of antennas based on health, safety, or aesthetic considerations
must . . . accommodate reasonably” amateur radio communications and “represent the minimum
practicable regulation” for accomplishing the local purpose. Id.
“The cornerstone on which we will predicate our decision is that a reasonable
accommodation may be made between the two sides.” Id. at 959.
Our Court of Appeals has not construed PRB-1’s limited preemption. Federal courts that
have considered PRB-1’s preemptive effect have upheld it in two circumstances. See Pentel, 13
F.3d at 1263 (citing cases). A local ordinance that bans or imposes fixed height restrictions on
amateur radio antennas runs afoul of PRB-1 and the federal regulation therefore facially
preempts such local regulation. See, e.g., Evans, 994 F.2d at 976-77; see also Bodony v. Inc.
Village of Sands Point, 681 F. Supp. 1009 (E.D.N.Y. 1987) (voiding building ordinance’s
absolute height limitation as preempted by PRB-1). Second, PRB-1 may preempt a zoning
ordinance that is not applied in a way that reasonably accommodates amateur radio
communications. But the courts have also concluded that PRB-1’s limited purpose is to
promote the federal interest in amateur radio operations, not to grant an individual operator a
right to erect any antenna he chooses. Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th
Cir. 1991).
Regrettably, the FCC offers little guidance about “reasonable accommodation” in the
context of local zoning ordinances.

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[W]e recognize that a local community that wants to preserve
residential areas as livable neighborhoods may adopt zoning
regulations that forbid the construction and installation in a
residential neighborhood of the type of antenna that is commonly
and universally associated with those that one finds in a factory
area or an industrialized complex. Although such a regulation
could constrain amateur communications, we do not view it as
failing to provide reasonable accommodation to amateur
communications.
Second Modification, 15 F.C.C.R. at 22154.
As noted, which “reasonable accommodation” shields a municipality from coverage of
the FCC’s limited preemption has not to date come before our Court of Appeals. But we find the
reasoning of other Courts of Appeals persuasive as to the steps a municipality must take with
minimum practicable regulation to reasonably accommodate an amateur radio operator. The
Eighth and Ninth Circuits adopted a three-part prong approach under which “a city [is] free to
deny an antenna permit as long as it has considered the application, made factual findings, and
attempted to negotiate a satisfactory compromise with the applicant.” Howard, 937 F.2d at 1380
(cited with approval in Pentel, 13 F.3d at 1264). The Tenth Circuit in Evans similarly cited as
signs of a municipality’s reasonable accommodation the three hearings at which evidence was
taken from the ham operator, his neighbors and experts in ham radio operation and real estate, as
well as the number of alternative antennas and sites considered. Evans, 994 F.2d at 762.
The Eight Circuit flat-footedly held that “[a]pplication of this reasonable accommodation
standard. . . does not require the city to allow the amateur to erect any antenna [he] desires.”
Pentel, 13 F.3d at 1264. We find this teaching -- rooted in common sense -- persuasive. Indeed,
a district court found a municipal planning commission reasonably accommodated an applicant
by “carefully considering the relevant law, offering compromise solutions, ordering an
independent assessment of the application, and making detailed findings of its reasons for

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denying the application.” Bosscher v. Township of Algoma, 246 F. Supp. 2d 791, 802 (W.D.
Mich. 2003) (where a planning commission held hearings, considered expert testimony, offered
the applicant alternatives, and found that he could enjoy “very suitable coverage” with a shorter
tower and repeater or a more powerful transmitter). As a result, the district court in Bosscher
held that PRB-1 did not preempt the Township’s actions and dismissed the applicant’s federal
suit.
By contrast, a planning board demonstrates its inflexibility by making unreasonable
demands -- for example, restricting the applicant’s tower operation to nighttime or requiring him
to spend thousands of dollars on vegetative screening (after the applicant accommodated
previous requests for site proposals and liability insurance, and on his own initiative agreed to
lower the tower when not in use). See Palmer v. City of Saratoga Springs, 180 F. Supp. 2d 379,
385 (N.D.N.Y. 2001). The Court in Palmer reasoned the planning board had not reasonably
accommodated the applicant as PRB-1 requires because it did not attempt to come to a
satisfactory compromise with him. Id. at 386. It declared the city’s ordinance preempted and
ordered the planning board to grant the application with the conditions the applicant had already
agreed to. Id.
At a minimum, then, a municipality reasonably accommodates a ham radio operator
when it considers his application, holds public hearings, makes factual findings and seeks a
compromise. At the same time, the FCC’s exhortation that reasonable accommodation be made
“between the two sides” suggests that the applicant, too, must compromise, the more so since its
limited preemption doctrine expresses a federal, not individual, interest.
Turning to the facts DePolo alleges, there is no question that the Township of Tredyffrin
took steps to reasonably accommodate him. To begin with, the Township demonstrated that the

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Township's building height ordinance is not rigidly inflexible since the ZHBA exercised its
authority to grant DePolo a permit for a 65-foot tower. We agree with the defendants that the
ordinance is not, accordingly, facially preempted.
What’s more, the ZHBA considered DePolo’s application during the course of hearings
held on five days over three months at which it took testimony from the applicant, neighbors and
a neighborhood association, as well as interested parties such as the National Park Service and
experts who were able to discuss the communications range of differently configured antennas.
It made factual findings about DePolo’s proposed tower in comparison with other industrial
structures in the neighborhood -- both as to its physical presence and broadcast reach -- and it
reviewed over one hundred exhibits admitted into evidence. At the conclusion of the
proceedings, the ZHBA offered DePolo a 65-foot tower permit as a compromise.
As to whether the parties engaged in negotiations, DePolo contends that the Township
did not offer to negotiate with him (and, he suggests, actively opposed him) and that he requires
a 180-foot tower, not a 65-foot one which he claims is a “completely ineffective antenna height.”
Compl. at ¶ 27. The Township is silent as to any efforts to negotiate. The ZHBA takes pains to
point us to Pennsylvania statutes which block a zoning hearing board from initiating or
participating in mediation. See Pennsylvania Municipalities Planning Code, Act of 1968, P.L.
805, No.247 as reenacted and amended, Art. IX, Zoning Hearing Board and other Administrative
Proceedings, Section 908.1.
Whether the ZHBA offer of a permit for a 65-foot tower shows enough spirit of
compromise is not a question we need answer because the FCC’s requirement for reasonable
accommodation requires both sides to strive for accord. PRB-1 does not oblige any Township to
give DePolo the tower height he chooses. Indeed, its focus on the federal interest in radio

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communications appears amply met here on the face of the ZHBA's factual findings, by
DePolo’s existing antenna and the offer of a permit for a 65-foot tower. DePolo, by his own
admission, took no steps to meet the Township part way. Instead, he inflexibly demanded a
permit for a 180-foot tower.

And his subsequent decision to withdraw his permit application

short-circuited the process. We find that the Township's proposed permit for a 65-foot tower
sought to reasonably accommodate DePolo and his decision to insist on his way or the highway
does not satisfy the FCC's accommodative approach. To find otherwise would encourage
disappointed or disaffected applicants to try to end-run established process and sabotage
negotiations they deem unfavorable by seeking redress in federal court.
We will not, therefore, declare that PRB-1 preempts Tredyffrin’s zoning ordinance or the
ZHBA’s October 23, 2014 decision. We will grant the defendants’ motions and dismiss
DePolo’s complaint, concluding that he cannot invoke the FCC’s limited preemption doctrine
when he himself obdurately thwarted the very reasonable accommodation that the FCC urges on
applicants and municipalities alike. Because we dismiss DePolo’s federal claim, we decline to
exercise supplemental jurisdiction over his state-law claims.
Nonetheless, we again take further guidance from the Eighth Circuit and “exhort the
parties to work together to arrive at a satisfactory solution.” Pentel, 13 F.3d at 1266.

IV.

Conclusion
For the reasons detailed above, we dismiss DePolo’s federal claims. We also decline to

exercise supplemental jurisdiction over his state law claims. As we are dismissing this matter,
we deny as moot the would-be interveners'’ motion for reconsideration.
An appropriate Order follows.

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BY THE COURT:
_/s/ Stewart Dalzell, J.
Stewart Dalzell, J.

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