Horvath Towers III, LLC v. Zoning Hearing Board of Butler Township
Filing
26
MEMORANDUM (Order to follow as separate docket entry) re 14 MOTION for Summary Judgment filed by Zoning Hearing Board of Butler Township, 19 Cross MOTION for Summary Judgment filed by Horvath Towers III, LLC. Signed by Honorable Malachy E Mannion on 3/29/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
HORVATH TOWERS III, LLC,
:
Plaintiff
:
CIVIL ACTION NO. 3:16-0029
v.
:
(JUDGE MANNION)
ZONING HEARING BOARD OF
BUTLER TOWNSHIP,
:
:
Defendant.
MEMORANDUM
Currently before the court is a motion for summary judgment filed by the
defendant, the Zoning Hearing Board of Butler Township (“the Board”), (Doc.
14), and a cross-motion for summary judgment filed by plaintiff Horvath
Towers III, LLC (“Horvath”), (Doc. 19). Based on the foregoing reasons, the
Board’s motion is GRANTED and Horvath’s motion is DENIED.
I.
BACKGROUND1
A.
Horvath’s Zoning Application
Horvath is in the business of leasing real estate, on which it constructs
radio towers and then sublets the use of those towers to personal wireless
1
Unless otherwise noted, the primary facts are taken from uncontested
portions of Horvath’s statement of facts, (Doc. 20), and the Board’s statement
of facts, (Doc. 16). Horvath did not respond to the Board’s statement of facts
per Local Rule 56.1. Thus, in accordance with the rule, the material facts set
forth in the Board’s statement are deemed admitted. The court will also refer
to the Return of Record submitted by the Board, (Doc. 18), containing all of the
documents and exhibits from the underlying zoning application.
communications providers licensed by the Federal Communications
Commission (“FCC”). (Doc. 20 ¶1; Doc. 25 ¶1). The Board is a government
agency created by the Township of Butler, Schuylkill County, Pennsylvania
pursuant to Section 10901 of the Pennsylvania Municipalities Planning Code,
53 PA. STAT. §10101–11202. (Id. ¶2; id. ¶2). On August 24, 2015, Horvath
entered into a land lease agreement with Ettore DiCasimmiro, executor of the
estate of Eileen J. DiCasimmiro, together with Ettore DiCasimmiro, Felicia
Bruni, and Bernard DiCasimmiro. (Doc. 20 ¶3). The DiCasimmiro property is
located in the R-1 Low Density Residential Zoning District (“R-1 District”) within
Butler Township. (Id. ¶14). Horvath intended to use the leased land to build a
tower which it would then sublease to Limitless Wireless (“Limitless”), a
wireless telephone and high speed data internet provider. (Id. ¶¶5, 7). There
is a tower owned and/or operated by Service Electric in the area of the
DiCasimmiro property. (Id. ¶34; Doc. 25 ¶24). The tower is not located in the
R-1 District and the record does not indicate when that tower was constructed.
(Doc. 25 ¶34).
On June 12, 2015, Horvath and Limitless submitted a building and
zoning permit application to the Butler Township Zoning Officer, which was
denied.2 (Doc. 16 ¶1). Horvath appealed the denial to the Board and
2
Horvath Communications, Inc., and not Horvath Towers III, LLC, was
listed as the applicant for the zoning permit. (Doc. 16 ¶1). There is no genuine
dispute that the applicant and the current plaintiff are different entities and it
appears there was a naming error on the application or, perhaps, a fictitious
2
requested a special exception under Section 509 of the Butler Township
Zoning Ordinance of 1997 to erect a cell tower in the R-1 District. (Id. ¶2). The
tower was to consist of a 195-foot monopole-type tower with proposed
Limitless antennas and a four foot lighting rod on top, bringing the total height
for the proposed tower to 199 feet. (Doc. 20 ¶10).
B.
The Township Ordinance
Section 509 was added to Butler Township Zoning Ordinance of 1997
(“Ordinance”) on March 26, 2010 by Ordinance No. 2010-9. (Doc. 18-2 at 20).
This section was added under Article V of the Ordinance titled “Supplementary
Regulations.” Section 509 is titled “Uses Not Specified” and it states as
follows:
Any Use not specifically mentioned in Article IV or
elsewhere in the Butler Township Zoning Ordinance
of 1997 or any amendments thereto shall be allowed
by Special Exception in the district or districts where,
and to the extent that, similar uses are Permitted Uses
or are allowed by Accessory Use, Conditional Use or
Special Exception; provided that said Use does not
constitute a public or private nuisance, and provided
that said Use will be subject to any reasonable
restrictions to protect the public health, safety and
general welfare determined to be necessary by the
Butler Township Zoning Hearing Board. If the Use not
specifically mentioned is dissimilar to all Uses which
are Permitted Uses or are allowed by Accessory Use,
name was used. The Board has not raised this as an issue for resolution.
Thus, the court will continue to refer to the plaintiff Horvath as the applicant
listed on the permit application.
3
Conditional Use or Special Exception, then such Use
shall be allowed by Special Exception in the Light
Industrial District (§408): provided that said Use does
not constitute a public or private nuisance, and
provided that said Use will be subject to any
reasonable restrictions to protect the public health,
safety and general welfare determined to be
necessary by the Butler Township Zoning Hearing
Board.
(Id.). Section 803.3 of the Ordinance is also applicable to Section 509 because
Section 509 qualifies as a special exception. Section 803.3 provides a list of
seven conditions applicable to the Board’s grant of any special exceptions
under the Ordinance. One requirement is that “[s]uch use shall not adversely
affect the character of the zoning district, nor the conservation of property
values, nor the health and safety of residents or worker on adjacent properties
and in the general neighborhood.” (Doc. 22-2 §803.3(e)).
Section 403 of the Ordinance lists the items that are allowed within the
R-1 District specifically, the district Horvath proposed to build a tower. (Doc.
18-2 at 17–19). Section 403 does not explicitly allow wireless communication
facilities in the R-1 District. Section 403.1(d) does, however, allow for “[p]ublic
uses, structures and buildings owned or operated by the Municipality or any
Municipal Authority organized by the Municipality” as a permitted use. (Id. at
17). Horvath’s application was submitted pursuant to Section 509 under the
theory that Horvath’s tower might qualify as a special exception because it was
similar to the permitted use listed in Section 403.1(d).
4
C.
The Board Hearings
A public hearing was conducted on July 29,3 August 26, and October 14,
2015 regarding Horvath’s request for a special exception and evidence was
presented to the Board in the form of oral testimony and exhibits. (Doc. 16
¶7). During these hearings, four individuals testified on Horvath’s behalf: (1)
James Shelton, a Limitless radiofrequency engineer; (2) Jeffrey Nahorny, P.E.,
a professional engineer; (3) John Doyle, M.A.I., a real estate appraiser; and
(4) Deborah Baker, a site acquisition consultant. (Doc. 20 ¶24; Doc. 25 ¶24).
Several residents also testified at the hearings and objected to the application
(“objectors”). In addition, Edward Barket, a real estate appraiser, offered
testimony on behalf of the objectors. (Id.; id.).
There was testimony regarding the need for a tower in order to provide
radiofrequency coverage. (Doc. 16 ¶9). Mr. Shelton and Ms. Baker also
testified that the proposed tower would be similar to municipality-owned towers
in other counties. (Doc. 18-7 at 29, 73). Horvath also provided eighteen
examples of municipality owned or operated wireless communication facilities
within the Commonwealth of Pennsylvania, submitted as Applicant’s Exhibit
8. (Doc. 16 ¶10; see also Doc. 18-3 at 23; Doc. 18-8 at 24–25). None of these
facilities were located in Schuylkill County. (Id.). All of the facilities were
3
The transcript for the first hearing is dated June 29, 2016. (Doc. 18-7
at 1). All parties agree that this date is incorrect and that the correct date is
July 29, 2015.
5
located in Dauphin and Lancaster County, with the exception of one facility
located in Berks County. In addition, no party could identify a town within
Schuylkill County that owned its own tower. (See Doc. 18-7 at 74; Doc. 18-8
at 29).
In addition to the above testimony regarding municipality-owned towers,
Horvath and the objectors put on evidence regarding the impact of the
proposed tower on the community. Horvath put on evidence to show that the
proposed tower would meet the seven requirements of Section 803.3 for all
special exceptions. (See Doc. 20 ¶32). Mr. Doyle presented a written report
utilizing the paired analysis methodology as evidence to show that the
proposed tower would not adversely impact the market value of homes in the
community. (See id. ¶32(c); Doc. 18-3 at 76–122; Doc. 18-4). Unlike Mr.
Doyle, Mr. Barket, the real estate appraiser who testified on behalf of the
objectors, did not prepare a written report and did not conduct a particular
study in reaching his opinion that the proposed tower would adversely effect
the market value of homes. (See id. at 33).
At the conclusion of the hearing, Horvath and the objectors submitted
findings of fact and conclusions of law for consideration by the Board. (Doc.
20 ¶25). Ultimately, the Board denied Horvath’s request for a special exception
in a written decision dated December 9, 2015. (Id. ¶26; see also Doc. 22-6).
6
D.
The Board’s Decision
The Board made several conclusions of fact and law to support their
decision to deny Horvath’s application for a special exception under Section
509. First, in its conclusions of law, the Board found that Horvath’s “proposed
use [was] not similar or sufficiently similar to uses, building [sic] or structures
of Butler Township” as required by Section 509. (Doc. 22-6 ¶13). In making
this finding the Board stated:
While there may be municipally owned or operated
facilities which are similar to privately owned or
operated wireless facilities in terms of their design,
structures and operation, including towers used for
emergency or governmental communication
purposes, elsewhere in Pennsylvania, none are
known to exist or needed in Schuylkill County nor
specifically in Butler Township as the record lacked
such evidence; moreover, the record lacks evidence
of many key issues about these other wireless
communication towers for municipal or public use
located elsewhere including as to when any such
public or emergency (911) communication towers
where erected vis-á-vis any surrounding residential
structures nearby, the actual distances from the
towers to the residential structures, what the
corresponding zoning regulations allowed and what
similar zoning districts they were erected in the
respective locations, and the height of the other
structures as none appear from the photographic
images submitted as part of Applicant Exhibit 8 to be
as large or high as the Applicant’s proposed cell
tower. There was no testimony that there are plans for
any wireless communication towers to be utilized by
the township for police or other municipal uses.
7
(Id. ¶11). The Board did not give any weight to Applicant’s Exhibit 8. (Id.).
Instead of finding that the proposed tower was similar or substantially similar
to any uses allowed in the R-1 District, the Board found that the proposed use
might be permitted in Light Industrial District. (Id. ¶¶14–15).
Next, the Board concluded that “[e]ven if the Applicant [were] able to
carry its burden for a special exception in R-1, the Applicant [had] not
adequately met its burden set forth set forth in Section 803.3 [of the
Ordinance] for special exceptions.” (Id. ¶17). In reaching this secondary
conclusion, the Board explained that Horvath had not demonstrated
compliance with the criteria in Section 803.3. (Id.). The Board found that (1)
the proposed tower would adversely affect the character of the neighborhood
and the conservation of property values by deteriorating property values and
their marketability; (2) that no adequate safeguards could be implemented to
mitigate this impact; (3) that the tower was not in harmony with the general
purpose and intent of the Ordinance and would not promote the most
appropriate use of the land; (4) that it would be an attractive nuisance to
children; (5) that is might create traffic of construction equipment during
erection; and (6) that it would conflict with the direction of building
development. (Id.). The Board then stated that the resident objectors had “met
their respective burden of demonstrating the negative impact on the health,
safety and welfare presented by the project, which the Applicant [had] failed
8
to adequately rebut.” (Id. ¶19). It is this secondary finding that Horvath now
challenges, while the Board stands upon the first.
II.
PROCEDURAL HISTORY
On January 7, 2016, Horvath filed a complaint in this court alleging that
the
Board’s
decision
violated
two
separate
provisions
of
the
Telecommunications Act of 1996 (“TCA”), PUB. L. NO. 104-104, 110 STAT. 56
(codified in scattered sections of 15 and 47 U.S.C.). (See Doc. 1). Horvath
also appealed the Board’s decision on state law grounds. (See id.). On
January 8, 2016, Horvath also filed a Notice of Land Use Appeal in the Court
of Common Pleas of Schuylkill County. (Doc. 16 ¶19). On March 15, 2016, the
state land use appeal was stayed at the request of the parties until final
disposition of the action filed in this court. (Id. ¶21).
On June 24, 2016, the Board filed their current motion for summary
judgment, along with a statement of facts, exhibits, and a brief in support.
(Docs. 14, 15, 16). On June 27, 2016, the Board also filed a Return of Record
documenting the entirety of the underlying zoning proceedings. (Doc. 18). On
June 27, 2016, Horvath filed the current cross-motion for summary judgment,
along with a statement of facts and brief in support. (Docs. 19, 20, 21). On
June 28, 2016, Horvath filed its own set of exhibits. (Doc. 22). On July 18,
2016, the Board responded to Horvath’s cross-motion with a brief in opposition
and a response to Horvath’s statement of facts. (Docs. 24–25). Also on July
9
18, 2016, Horvath responded to the Board’s motion with a brief in opposition.
(Doc. 23). Horvath did not file a response to the Board’s statement of facts.
III.
STANDARD OF REVIEW
Rule 56 allows a court to enter summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A factual dispute is material if
it will affect the outcome of the case and is genuine if a reasonable jury could
find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp. 836, 838 (M.D. Pa.
1995). With respect to materiality, “the substantive law will identify which facts
are material.” Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162,
172 (3d Cir. 2008) (quoting Anderson, 477 U.S. at 248)). “Factual disputes
that are irrelevant and unnecessary will not be counted.” Id.
In order to prevail, the movant and nonmovant must point to “particular
parts of materials in the record” and show that the other party’s evidence does
“not establish the absence or presence of a genuine dispute.” FED. R. CIV. P.
56(c)(1)(A), (B). The nonmoving party cannot simply rest on “mere allegations
or denials.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting
FED. R. CIV. P. 56(e)). In assessing the parties’ arguments, the “court must
view the facts in the light most favorable to the nonmoving party and draw all
10
inferences in that party’s favor.” Sovereign Bank, 533 F.3d at 171 (3d Cir.
2008) (quoting Saldana, 260 F.3d at 232). In addition, the court “may not
make credibility determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).4
Here, the parties’ motions present a mixed question of law and fact,
whether the Board’s decision was supported by substantial evidence as
required by the TCA and Pennsylvania law. In addition, the court must identify
whether the Board abused its discretion or committed errors of law. These
questions are properly before this court.
IV.
DISCUSSION
A.
The Telecommunications Act
The TCA was enacted “to provide a pro competitive de-regulatory
national policy framework designed to accelerate rapidly private-sector
deployment of advanced telecommunications and information technologies
and services to all Americans by opening all telecommunications markets to
competition.” Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Twp., 181
F.3d 403, 406–407 (3d Cir. 1999) (quoting H.R. Conf. Rep. No. 104-458, at
4
“The standards governing the court’s consideration of Federal Rule
56[] cross-motions are the same as those governing motions for summary
judgment, although the court must construe the motions independently,
viewing the evidence presented by each moving party in the light most
favorable to the [nonmovant].” Schiazza v. Zoning Hearing Bd. of Fairview
Twp., 168 F. Supp. 2d 361, 365 (M.D. Pa. 2001).
11
113 (1996), reprinted in 1996 U.S.C.C.A.N. 124). The TCA “expressly
preserved local zoning authority over the placement, construction[,] and
modification of personal wireless service facilities.” Cellular Tel. Co. v. Zoning
Bd. of Adjustment of Ho-Ho-Kus, 197 F.3d 64, 68 (3d. Cir. 1999) (citing 47
U.S.C. §332(c)(7)(A)). The TCA does, however, place “several substantive
and procedural limits upon that authority when it is exercised in relation in to
personal wireless service facilities.” APT Pittsburgh Ltd. P’ship v. Penn Twp.
Butler County of Pennsylvania, 196 F.3d 469, 473 (3d Cir. 1999).
With respect to procedural protections, the TCA states that “[a]ny
decision by a State or local government . . . 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). With respect to substantive protection, the TCA provides
that “[t]he regulation of the placement, construction, and modification of
personal wireless service facilities by any State or local government . . . shall
not unreasonably discriminate among providers of functionally equivalent
services.” §332(c)(7)(B)(i)(I). Horvath’s TCA claims are premised on these two
provisions.
Where a local government’s final actions are inconsistent with the
safeguards set forth in the TCA, “any person” who has been “adversely
affected” by the final action may file a lawsuit in a court of competent
jurisdiction. §332(c)(7)(B)(v). Courts within this circuit have allowed those who
12
construct and operate wireless telecommunications facilities to bring suit,
even if they are not carriers or providers of wireless services. See Global
Tower, LLC v. Hamilton Twp., 897 F. Supp. 2d 237, 243 (M.D. Pa. 2012);
Liberty Towers, LLC v. Zoning Hearing Bd. of Lower Makefield, 748 F. Supp.
2d 437, 439, 442 (E.D. Pa. 2010). The court agrees with these decisions.
Thus, although not a provider of wireless services, Horvath may bring suit to
enforce the provisions of the TCA. The Board’s decision adversely affected
Horvath, particularly the company’s plan to lease the land to Limitless for
wireless services.
i.
Substantial Evidence
Horvath argues in its cross-motion that the Board’s decision was not
supported by substantial evidence in the written record. Horvath focuses on
the secondary conclusion in the Board’s written decision—the conclusion that
the proposed tower could not meet the requirements under Section 803.3 of
the Ordinance for special exceptions. Horvath contends that this decision was
not supported based on the evidence presented at the hearings and also
contends the Board made a legal error and improperly placed the burden of
showing the impact on the community on the applicant, instead of the
objectors.
The Board does not dispute the allegation regarding the alleged error
of law and instead focuses on the Board’s first finding that the tower was not
13
similar to any use allowed in the R-1 District. The Board contends that this
primary finding was supported by substantial evidence in the record and
contends that this is enough to comply with the TCA. The court agrees that
the Board’s primary finding was supported by substantial evidence and this
is enough to meet the requirements of the TCA.
“In order to determine whether a locality’s denial was supported by
substantial evidence . . . courts must be able to identify the reason or reasons
why the locality denied the application.” T-Mobile South, LLC v. City of
Roswell, 135 S. Ct. 808, 814 (2015). The term “substantial evidence” is a term
of art and should be construed in accordance with the traditional standard
used in other areas of administrative law. See id.; Omnipoint Commc’ns
Enter., L.P. v. Zoning Hearing Bd. of Easttown Twp., 248 F.3d 101, 106 (3d
Cir. 2001).
[Substantial evidence] “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. 156 (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 Board of the
Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d
64, 71 (3d Cir. 1999).
14
Omnipoint Commc’ns, 248 F.3d at 106 ; see also Ogden Fire Co. 1 v. Upper
Chichester Twp., 504 F.3d 370, 379 (3d Cir. 2007). It requires more than a
scintilla of evidence but less than a preponderance. Global Tower, 897 F.
Supp. 2d at 251. In addition, where there is conflicting evidence, “the factfinder must adequately explain its reasons for rejecting or discrediting
competent evidence.” Id. (quoting Cellular, 197 F.3d at 71).
Here, the Board’s decision to deny Horvath’s application was supported
by substantial evidence. The Board’s finding that Horvath’s proposed tower
was not similar to uses listed under Section 403 of the Ordinance is supported
by the written record and the Board’s written reasoning. The Board’s
placement of the burden on Horvath to show the tower met the requirements
of the special exception under Section 509 was correct under Pennsylvania
law. Whether their secondary conclusion was supported and legally sound
only becomes an issue if their primary finding was unsound, which is was not.
“[A] special exception in a zoning ordinance is a use which is expressly
permitted in a given zone so long as certain conditions detailed in the
ordinance are found to exist.” Broussard v. Zoning Bd. of Adjustment of
Pittsburgh, 907 A.2d 494, 499 (Pa. 2006). The rules that govern the grant or
refusal of a special exception are governed by the ordinance itself. Id. It is not
really an exception, but “a use permitted conditionally, the application for
which is to be granted or denied by the zoning hearing board pursuant to
express standards and criteria.” Odgen, 504 F.3d at 382 (quoting In re
15
Brickstone Realty Corp., 789 A.2d 333, 340 (Pa. Commw. Ct. 2001)). An
explicit special exception in an ordinance has already been designated to be
appropriate for the particular zoning district and is “presumptively consistent
with the public health, safety and welfare” of the residents in that district. JoJo
Oil Co., Inc. v. Dingman Twp. Zoning Hearing Bd., 77 A.3d 679, 686 (Pa.
Commw. Ct. 2013); see also id. An applicant is entitled to this presumption
once the applicant has established that the proposed use meets the
requirements of the savings clause, including any “specific objective criteria”
of the ordinance. Id. at 687.
“[It is impossible[, however,] for a legislative body to anticipate every
conceivable use of land.” JoJo Oil, 77 A.3d at 685–86(quoting Cellco P’ship
v. N. Annville Twp. Zoning Hearing Bd., 919 A.3d 430, 434 (Pa. Commw. Ct.
2007)). As such, town ordinances will often have what is referred to as a
“savings clause,” allowing a use when it is similar to some other allowed use
in the ordinance. Id. at 685. Where the special exception is based on a
savings clause, the applicant must meet the requirements of the savings
clause and any specific objective criteria within the savings clause. See id. at
686, 688. After meeting this burden, the applicant is entitled to the
presumption of appropriateness and it is then the burden of objectors to show
that the proposed use does not meet “general, non-specific or non-objective
requirements such as health and safety.” Id. at 688. It is premature, however,
to engage in an analysis of the subjective criteria used to grant special
16
exceptions, generally, if the applicant has not satisfied the criteria of the
savings clause itself. Id. at 686.
Horvath’s application was based on Section 509 of the Ordinance, a
savings clause. Section 509 is titled “Uses Not Specified” and it allows a use
in the township as a special exception “if similar uses are Permitted Uses or
are allowed by Accessory Use, Conditional Use or Special Exception.” (Doc.
18-2 at 20). The ordinance also has an explicit special exception analysis to
be used whenever the Board is deciding whether or not to grant a special
exception, located in Section 803.3. (Doc. 22-2, §803.3(e)). That only became
relevant, however, if Horvath was able to show that the proposed tower met
the objective criteria of Section 506—i.e., that it was similar to some allowed
use in the R-1 District.
Horvath’s application was premised on the theory that the proposed 199
foot tower might qualify as a special exception because it was similar to the
permitted use listed in Section 403.1(d). That section lists “[p]ublic uses,
structures and buildings owned or operated by the Municipality or any
Municipal Authority organized by the Municipality” as a permitted use in the R1 District. (Doc. 18-2 at 17). In particular, Horvath analogized their proposed
tower to a communication tower that might be used for emergency services
or a cellular tower owned by a municipality and leased to wireless providers.
(See Doc. 18-7 at 29).
17
In support of this theory, during the July 29, 2015 hearing, Ms. Baker,
the site acquisition specialist, testified that the proposed tower would have a
use that is similar to many municipalities that have towers either for their own
communication services—for example, emergency services—or towers that
are leased to cellular companies by the municipality. (Id.). Ms. Baker did not
specifically indicate the details of these municipality owned or operated
towers, but, over objections, testified that in her view the proposed tower fell
within the parameters of Section 403.1(d). (Id. at 30–31). Part of her
reasoning was based on the existing Service Electric tower near the proposed
sight. (Id. at 31).
On cross-examination, Ms. Baker could not identify when the existing
tower was put in place. (Id. at 35). She testified that she believed the existing
tower was approximately 120 feet high. (Id.). She also testified that she had
seen “towers everyday in residential neighborhoods.” (Id. at 37). She did not
provide any specific information regarding these municipality owned or
operated towers, their physical dimensions, or their frequency in Pennsylvania
or in Schuylkill County, specifically.
Next, Mr. Shelton, the radiofrequency engineer, testified that the
proposed tower would be very similar in use to a municipality-owned tower,
which he described as a public safety tower. (Id. at 73). He explained that the
parts would be, essentially, the same as the proposed tower. (Id. at 73–74).
On cross-examination, Mr. Shelton could not name a town in Schuylkill
18
County that had its own tower. (Id. at 74). He stated, generally, that there
were “a lot of towers . . . attached to fire departments, very small towers,”
indicating that they were smaller than the proposed tower. (Id.). With respect
to towers 200 feet in height, he explained that he would be able to discuss
many sites in New Jersey of that height or taller. (Id. at 75).
At the August 26, 2015 hearing, Ms. Baker was recalled as a witness.
At that time, she presented Applicant Exhibit 8 listing eighteen municipality
owned wireless communication facilities in Pennsylvania. (Doc. 18-3 at
23–41; Doc. 18-8 at 20–21). She explained that many of the facilities on the
list were built close to residential communities and that the list was meant to
be illustrative of towers owned or operated by municipalities in Pennsylvania,
not exhaustive. (Doc. 18-8 at 24–25). The exhibit contained street view and
aerial photos of the existing towers, but these photos did not indicate how tall
the towers were. The majority were located in Dauphin and Lancaster County,
with one located in Berks County. (Doc. 18-3 at 23). On cross-examination,
again, Ms. Baker could not name a municipality-owned tower in Schuylkill
County, specifically. (Doc. 18-8 at 29). She also responded in the affirmative
when asked whether or not Dauphin and Lancaster County were more
populated, generally, than Schuylkill County. (Id. at 30). She admitted that her
examples did not present examples of municipality-owned towers in small,
rural communities. (Id.).
19
In its written decision, the Board concluded that Horvath’s proposed use
was not “similar or substantially similar to any allowed uses, building [sic] or
structures of Butler Township.” (Doc. 22-6 ¶13). The Board did not give any
weight to Applicant Exhibit 8 listing municipality-owned towers in Dauphin,
Lancaster, and Berks County for several reasons: (1) the list did not contain
any towers within Schuylkill County or Butler Township; (2) the record lacked
evidence about “key issues” such as whether the listed towers were near
residential communities, the actual distance from the towers to residential
structures, the corresponding zoning regulations for the listed towers, the
zoning district they were in, and the heights of the listed towers; and (3) none
of the towers appeared to be as high as the proposed tower. (Id. ¶11). The
Board stated their reasoning as follows:
While there may be municipally owned or operated
facilities which are similar to privately owned or
operated wireless facilities in terms of their design,
structures and operation, including towers used for
emergency or governmental communication
purposes, elsewhere in Pennsylvania, none are
known to exist or needed in Schuylkill County nor
specifically in Butler Township as the record lacked
such evidence; moreover, the record lacks evidence
of many key issues about these other wireless
communication towers for municipal or public use
located elsewhere including as to when any such
public or emergency (911) communication towers
where erected vis-á-vis any surrounding residential
structures nearby, the actual distances from the
towers to the residential structures, what the
corresponding zoning regulations allowed and what
similar zoning districts they were erected in the
respective locations, and the height of the other
20
structures as none appear from the photographic
images submitted as part of Applicant Exhibit 8 to be
as large or high as the Applicant’s proposed cell
tower. There was no testimony that there are plans for
any wireless communication towers to be utilized by
the township for police or other municipal uses.
Accordingly, the Board gives no evidentiary weight to
Applicant Exhibit 8.
(Id. ¶11). Ultimately, the Board concluded that the proposed tower would not
be allowed in the R-1 District, but it did conclude that the proposed tower
might be allowed in the Light Industrial District. (Id. ¶15).
As stated in its findings of fact, the Board did not accept Ms. Baker’s
construction of the Ordinance, but did find Mr. Shelton’s testimony to be
credible. (Id. ¶¶19–20). The Board also determined that the existing Service
Electric tower was “significantly shorter in height” than the proposed tower,
was further away from residences, was “substantially obscured by foliage,”
and was likely built prior to the adoption of the Ordinance. (Id. ¶36). The
Board concluded that the record lacked sufficient facts regarding the existing
Service Electric tower’s location and whether the existing tower was within
Butler Township or along the township line. (Id.).
The Board’s above, legal conclusions are supported by substantial
evidence or, in this instance, the Board’s written reasoning weighing the
available evidence. The Board’s factual conclusions are supported by the
written record itself. It was Horvath’s burden to show it met the similarity test
listed in Section 509. There was conflicting evidence regarding whether or not
21
the proposed use was similar to the use allowed by Section 403.1(d).
Applicant Exhibit 8 and the testimony of Ms. Baker and Mr. Shelton supported
Horvath’s position, but the testimony on cross-examination and the lack of
details regarding municipality-owned towers supported denial. As the factfinder with conflicting evidence, the Board was required to “adequately explain
its reasons for rejecting or discrediting competent evidence,” and it did so by
giving specific reasons in its final conclusion. Cellular, 197 F.3d at 71. It is not
this court’s function to weigh the conflicting evidence a second time. T-Mobile
South, 135 S. Ct. at 814.
The Board considered the list of municipality-owned towers proffered by
Horvath, along with its accompanying photographs, and decided this exhibit
was not entitled to any weight. The Board explained its reasons for doing so
and the court cannot conclude that the Board’s reasoning was clearly wrong,
even when looking at contradictory evidence. The Board’s written reasoning
for rejecting Applicant Exhibit 8 included the fact that no municipality-owned
towers were shown to be in Schuylkill County and the fact that there was no
evidence in the record to indicate “key issues” including: (1) how tall the
illustrative towers depicted in the exhibit were; (2) how near the facilities were
to residential communities; and (3) the corresponding zoning districts and
regulations. From the court’s review of the underlying record, all of these
findings are correct except the finding that the record lacked evidence
regarding the actual distances of the towers in Applicant Exhibit 8 to
22
residential communities. It is obvious in the street view photos that the
municipality-owned towers are near residential homes, though it is true that
the actual distances are not represented. (See, e.g., Doc. 18-3 at 25). It is
less clear in the aerial photographs how far the municipality-owned tower
depicted is to nearby residential homes. (See, e.g., id. at 24). It is also true
that the heights of the listed towers are not represented. It is also true that
there is nothing to indicate that these towers were permitted under a provision
similar to Section 403.1(d).
In its factual findings, the Board rejected “any proffered testimony by
[Ms. Baker] concerning her interpretation of the zoning ordinances.” (Doc. 226 ¶19). This rejection, necessarily, included her opinion that the proposed
tower was similar to a municipality-owned tower. The Board’s conclusion was
based on the fact that the she was not a zoning expert and the Board also
found her testimony to be only partially credible. (Id.). It was the Board’s, and
not Ms. Baker’s, function to interpret the Ordinance. Thus, the Board’s
rejection of her legal interpretation was not incorrect. In addition, though Ms.
Baker indicated that there were “tons of towers within [Schuylkill] county,”
(Doc. 18-8 at 25), on cross-examination Ms. Baker could not identify a single
tower. The Board’s decision to place less weight on this testimony was, thus,
supported by the record.
The Board found Mr. Shelton’s testimony to be credible and his opinions
were generally accepted. (Doc. 22-6 ¶20). Mr. Shelton testified that the
23
proposed tower was functionally the same as municipality-owned towers,
though he indicated that those within the county were, generally, much
smaller. (Doc. 18-7 at 73–75). Like Ms. Baker, he also could not identify any
municipality-owned tower in Schuylkill County to aid the Board’s
determination. (Id. at 74). The fact that Mr. Shelton’s testimony did not sway
the Board is, therefore, not surprising.
The fact that the Board focused on the proposed tower’s physical
features and not simply its functional parts does not run afoul of Pennsylvania
law. “Deference is owed to a zoning board’s understanding of its own
ordinance.” Cellco, 939 A.2d at 437 (citing Broussard, 907 A.2d at 500). Here,
Horvath’s application was premised on the theory that its proposed tower
would be similar or substantially similar to a hypothetical municipality-owned
tower that might be allowed under Section 403.1(d). In order to meet the
similarity test, Horvath was required to show that their proposed tower was
similar to a hypothetical tower Butler Township might own or operate and that
the hypothetical tower would be allowed under Section 403.1(d) by the
Board’s interpretation of that section. The Board rejected this interpretation
of Section 403.1(d) and Section 509 when construed together. The court
cannot state that this finding was clearly wrong looking at the plain language
of the Ordinance and the written record.
Lastly, the Board’s secondary conclusions under Section 803.3 of the
Ordinance is not dispositive because Horvath failed to meet its burden under
24
the objective criteria set forth in Section 509. JoJo Oil, 77 A.3d at 686. This
secondary conclusion appears to have been a fail-safe in the event the
Board’s primary finding was incorrect. (See Doc. 22-6 ¶17 (stating that “[e]ven
if the Applicant was able to carry its burden for a special exception in R-1, the
Applicant has not adequately met its burden set forth in Section 803.3 for
special exceptions.”)). While the Board may have improperly placed the
burden on Horvath to show it met the subjective criteria of Section 803.3, this
evaluation would only be necessary where the Board’s primary finding was in
error. See JoJo Oil, 77 A.3d at 686. Because the Board’s primary finding was
supported by substantial evidence, the court need not reach Horvath’s
argument regarding Section 803.3. Accordingly, summary judgment will be
entered in favor of the Board on Horvath’s substantial evidence claim.
ii.
Unreasonable Discrimination
The Board also argues that Horvath’s unreasonable discrimination claim
must fail because no second provider actually exists. Horvath did not respond
to this argument in its brief or in its cross-motion, which is grounds alone for
granting summary judgment in favor of the Board. Moreover, the court agrees
with the Board and finds that this claim is not ripe for adjudication without an
actual provider as a comparator.
The TCA provision barring unreasonable discrimination “seeks to
ensure that, once the municipality allows the first wireless provider to enter,
25
the municipality will not unreasonably exclude subsequent providers who
similarly wish to enter and create a competitive market in telecommunications
services.” Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 264 n. 6 (3d Cir.
2002). This provision requires an analysis under a two-prong test. Id. at 266.
“[T]he first prong asks whether the providers are ‘functionally equivalent.’” Id.
(quoting 47 U.S.C. §332(c)(7)(B)(I)). This requires “showing that the other
provider is similarly situated, i.e., that the ‘structure, placement[,] or
cumulative impact’ of the existing facility makes them as or more intrusive
than the proposed facility.’” Id. at 267 (quoting APT Pittsburgh, 196 F.3d at
480). “If they are [functionally equivalent], then the second prong asks
whether the governmental body ‘unreasonably discriminate[d] among
providers.’” Id. at 266 (alteration in original). Some discrimination is permitted,
but it cannot be unreasonable. Id. “Discrimination may be impermissible
where a municipality favors one provider by permitting it to locate in a
particular area at the exclusion of others, thereby creating an unfair
competitive advantage.” Id.
Both the first and second prong contemplate the existence of two
providers, one that has been allegedly discriminated against and a
comparator. Here, Horvath’s theory is based on a hypothetical, Butler
Township-owned provider that might be allowed under the explicit language
of Section 403.1(d) of the Ordinance. No such provider actually exists. The
court is not able to adjudicate in hypothetical terms. The court’s judicial power
26
is limited to actual cases and controversies. U.S. CONST. art. III, §2, cl. 1. “A
claim is not ripe for adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.” Texas v. United
States, 523 U.S. 296, 300 (1998) (internal citation omitted).
Here, there is no indication that Butler Township has or will erect its own
tower, either for emergency services or to lease to providers of wireless
services. Looking at the Board’s written decision, there is no indication that
the Board has actually interpreted Section 401.1(d) to allow such a tower. The
fact that the Board sought information regarding the zoning districts and
ordinances for the towers listed in Applicant Exhibit 8 suggests that the Board
was not convinced that Section 401.1(d) encompassed such a tower. (Doc.
22-6 ¶11). The possibility of a Butler Township-owned wireless
communication facility in the R-1 District is, at this stage, speculation.
Moreover, without an actual tower, the court cannot evaluate the twoprong test for unreasonable discrimination and engage in a meaningful
analysis to determine if the providers are functionally equivalent and if the
discrimination is unreasonable. The court cannot deal in hypothetical terms.
Accordingly, Horvath’s unreasonable discrimination claim is not ripe for
adjudication and judgment will be entered in favor of the Board on this claim.
B.
The State Law Zoning Appeal
Summary judgment will also be granted in favor of the Board on
Horvath’s state law claim. The court will exercise supplemental jurisdiction
27
over this claim. See 28 U.S.C. §1367(a). A district court may decline to
exercise supplemental jurisdiction over a claim if it has dismissed all claims
over which it has original jurisdiction. §1367(c)(3). Moreover, “where the claim
over which the district court has original jurisdiction is dismissed before trial,
the district court must decline to decide the pendent state claims unless
considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d
109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d
780, 788 (3d Cir. 1995)) (emphasis in original).
Unusual circumstances are present here because the law governing
Horvath’s state law claim is nearly identical to Horvath’s substantial evidence
challenge under the TCA. Thus, the court has, effectively, decided the state
law claim in deciding the TCA claim. Cf. Growth Horizons, Inc. v. Delaware
County, 983 F.2d 1277, 1285 (3d Cir. 1993) (indicating that the district court
should exercise supplemental jurisdiction where the court had heard all of the
evidence necessary to reach the plaintiff’s state law claim); see also Schiazza
v. Zoning Hearing Bd., 168 F. Supp. 2d 361, 374 (3d Cir. 2001). In the interest
of judicial economy and convenience, the court will enter final judgment in
favor of the Board on Horvath’s state law claim, applying Pennsylvania law.
Where a court does not hear or take additional evidence, the decision
of a local zoning board will be overturned only where the board committed an
error of law or abused its discretion. Hertzberg v. Zoning Bd. of Adjustment of
Pittsburgh, 721 A.2d 43, 46 (Pa. 1998). “An abuse of discretion will only be
28
found where the zoning board’s findings are not supported by substantial
evidence.” Id. Similar to the standard under the TCA, substantial evidence in
a state zoning appeal refers to “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. The court has also
already concluded that the Board’s primary finding was supported by
substantial evidence. Thus, even if the Board committed an error of law in its
secondary finding, its primary finding would still be sufficient to warrant denial
of Horvath’s application. Thus, any alleged error relating to the secondary
finding is harmless. Accordingly, judgment will be entered in favor of the Board
on Horvath’s state law claim.
V.
CONCLUSION
The Board’s motion for summary judgment, (Doc. 14), is GRANTED
and Horvath’s cross-motion for summary judgment, (Doc. 19), is DENIED.
Judgment shall be entered in favor of the Board on all of the claims listed in
Horvath’s complaint, (Doc. 1). A separate order shall follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: March 29, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0029-01.wpd
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?