Horvath Towers III, LLC v. Zoning Hearing Board of Montoursville Borough
MEMORANDUM OPINION (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 1/12/18. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HORVATH TOWERS III, LLC,
ZONING HEARING BOARD OF
JANUARY 12, 2018
Plaintiff, Horvath Towers III, LLC, and Defendant, the Zoning Hearing
Board of Montoursville Borough, filed cross motions for summary judgment. For
the reasons that follow, Plaintiff’s motion is denied and Defendant’s motion is
Horvath Towers III, LLC (“Horvath”), constructs communications towers
and leases use of those towers to cell phone companies. 1 In 2013, Horvath leased
land from the Willing Hand Hose Company in the Borough of Montoursville,
ECF No. 25 (Statement of Material Facts) ¶ 1; ECF No. 30 ¶ 1.
Lycoming County, Pennsylvania, in order to construct such a tower, intending to
lease use of that tower to Verizon Wireless and Limitless Wireless.2
Montoursville is divided into ten zoning districts, 3 and the land leased by
Horvath is located in what is called the Broad Street Commercial (“BSC”) Zoning
Under the Montoursville Zoning Ordinance, only government-use
communications towers are permitted in the BSC Zoning District. 5
government-use towers, such as the tower planned by Horvath, are permitted only
in the Recreation Zoning District and the Industrial Zoning District. 6
On March 12, 2015, Horvath filed an application challenging the validity of
the Ordinance, claiming (1) that it created a de facto prohibition on nongovernment-use communications towers in the borough, and (2) that it drew an
impermissible distinction between government-use and non-government-use
The Zoning Hearing Board (“Board”) held three
ECF No. 25 (Statement of Material Facts) ¶¶ 1, 3-7; ECF No. 30 ¶¶ 1, 3-7.
ECF No. 25, Ex. A-4 ¶ 3.1.
ECF No. 25 (Statement of Material Facts) ¶ 8; ECF No. 30 ¶ 8.
ECF No. 25, Ex. A-4, art. 10.2.2.1.
Id., art. 22.214.171.124, 126.96.36.199.
ECF No. 25, Ex. A-1.B.
hearings on this application, 8
and released a written decision rejecting those
arguments and denying Horvath’s application on February 9, 2016.9
One month later, Horvath initiated the instant suit by filing a three-count
complaint.10 Counts I and II were brought under the Telecommunications Act of
1996, and Count III was styled as a “State Law Zoning Appeal.” 11 The Zoning
Board filed a motion to dismiss Count II, which this Court granted on October 18,
On June 22, 2017, the parties filed cross-motions for summary judgment. In
its motion, Horvath repeats the two arguments from its application, alleging that
the Board’s rejection of its Ordinance challenge violates federal and state law. The
Zoning Board argues that its rejection was legally sound.
Standard of Review
Summary judgment is granted when “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.” 13 A dispute is “genuine if a reasonable trier-of-fact could find in
ECF No. 25 (Statement of Material Facts) ¶ 11; ECF No. 30 ¶ 11.
ECF No. 25, Ex. F.
ECF No. 1.
Id. ¶¶ 34-59.
ECF No. 17.
Federal Rule of Civil Procedure 56(a).
favor of the non-movant,” and “material if it could affect the outcome of the
case.”14 To defeat a motion for summary judgment, then, the nonmoving party
must point to evidence in the record that would allow a jury to rule in that party’s
favor. 15 When deciding whether to grant summary judgment, a court should draw
all reasonable inferences in favor of the non-moving party. 16
Whether Horvath’s Claims
Telecommunications Act of 1996
Telecommunications Act of 1996.
Title 47 of U.S.C. § 332(c)(7)(B)(iii) states that “[a]ny decision by a State or
local government or instrumentality thereof to deny a request to place, construct, or
modify personal wireless service facilities shall be in writing and supported by
substantial evidence contained in a written record.” The United States Court of
Appeals for the Third Circuit has noted that this provision “is intended to provide
procedural protections with respect to determinations of factual issues made by a
state or local authority in the course of applying state and local zoning law.” 17 On
the other hand, that court has indicated that the provision is not intended as a
Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 300 (3rd Cir. 2012)
(citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986).
Federal Rule of Civil Procedure 56(c)(1); Liberty Lobby, 477 U.S. at 249.
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
APT Pittsburgh Ltd. P’ship v. Penn Twp. of Butler Cty., 196 F.3d 469, 474 (3d Cir. 1999).
vehicle through which to challenge a zoning board’s determination of a legal
Both of Horvath’s challenges to the Zoning Board’s decision are challenges
to that board’s determination of a legal issue, see infra. Therefore, they will be
analyzed under the proper state law framework and not under the
Telecommunications Act of 1996, and judgment will be entered in favor of the
Zoning Board on Count I of Horvath’s Complaint.
Whether the Ordinance Creates a De Facto Exclusion of NonGovernment Use Communications Towers in Montoursville
Horvath argues that the Ordinance creates a de facto exclusion of nongovernment-use communications towers in Montoursville.
Under Pennsylvania law, zoning ordinances are presumed to be “valid and
constitutional,” and there is a “heavy burden on anyone challenging the ordinance
to prove” otherwise. 19 This presumption, however, “can be overcome by proof that
the ordinance totally excludes an otherwise legitimate use.”20 Such exclusion can
be de jure—where “the ordinance, on its face, totally bans a legitimate use”—or de
Id. (holding that, because “[a] decision on the ‘exclusivity’ of a zoning ordinance under the
Pennsylvania Constitution is a legal issue that is not subject to deferential judicial review,”
such a decision is not “the kind of decision that Congress had in mind when it passed [47
U.S.C. §] 332(c)(7)(B)(iii)”).
Id. at 475.
facto—where the “ordinance permits a use on its face, but when applied acts to
prohibit the use throughout the municipality.” 21
Horvath has failed to successfully carry its “heavy burden” here. First of all,
a non-government-use communications tower already exists in the municipality.22
Second of all, Horvath’s own witnesses admitted that there was no exhaustive
canvass of the Recreation and Industrial Zoning Districts for a possible
communications tower site, and that it “is, in fact, possible to build a tower in the
[R]ecreation [Zoning] District.”23 Therefore, this Court cannot conclude that the
Ordinance “effectively precludes any service provider from building a functional
tower in” 24 Montoursville, and this state law claim fails.
Whether the Ordinance Draws an Impermissible Distinction
Under Pennsylvania law, a party may challenge a zoning ordinance by
showing that it does not “bear a rational relationship to the health, safety, and
general welfare of a community.” 25 Here, Horvath argues that the Ordinance’s
distinction between government-use and non-government use communications
towers—i.e., the fact that non-government use towers are limited to the Recreation
ECF No. 25, Ex. D (Transcript of July 22, 2015 Hearing) at 35, 50.
Id. at 51, 147.
APT Pittsburgh, 196 F.3d at 478.
Mahony v. Twp. of Hampton, 539 Pa. 193, 195 (1994).
and Industrial Zoning Districts, while government-use towers are permitted in
other districts—is an irrational and unreasonable distinction between those two
types of towers.
To support its argument, Horvath relies on a number of cases from
Pennsylvania state courts; these cases, however, only stand for the proposition that
a zoning ordinance cannot discriminate on the basis of ownership.26 Here, the
ordinance discriminates on the basis of use and is supported by reason.
municipality, after all, is entitled to decide that it wants to reduce certain intrusive
uses, like communications towers, while allowing them when they are used to
benefit the community at large—e.g., when they are used by police or first
responders. 27 This state law claim, then, also fails.
Because both of Horvath’s state law claims fail, judgment will be entered in
favor of the Zoning Board on Count III.
Keener v. Ralpho Twp. Zoning Hearing Bd., 79 A.3d 1205 (Pa. Commw. Ct. 2013)
(ordinance distinguished between commercial and non-commercial banquet facilities);
Ludwig v. Zoning Hearing Bd. of Earl Twp., 658 A.2d 836 (Pa. Commw. Ct. 1995)
(ordinance distinguished between for-profit and non-profit golf driving ranges); Mahoney v.
Twp. of Hampton, 539 Pa. 193 (1994) (ordinance distinguished between privately-owned and
publicly-owned gas wells).
Klein v. Council of the City of Pittsburgh, 643 A.2d 1107 (Pa. Commw. Ct. 1994) (upholding
zoning ordinance that distinguished between helicopter landing areas depending on whether
they were for “public use,” “general private use,” or “medical private use”).
For the reasons discussed supra, Horvath’s Motion for Summary Judgment
will be denied, and the Zoning Board’s Motion for Summary Judgment will be
granted. Judgment will be entered in favor of the Zoning Board on Counts I and
III of Horvath’s Complaint, and the case will be dismissed.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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