Hamilton Township, Pennsylvania, denied Global Tower’s application to construct a cell tower. Global Tower challenged this denial in federal court, alleging violations of the Telecommunications Act of 1996 (hereinafter “TCA”). Upon review of the magistrate judge’s recommendations, the United States District Court, Middle District of Pennsylvania granted Global Tower’s motion for summary judgment, and in so doing, ordered Hamilton to grant the application and all necessary permits and variances.
Global Tower leased a portion of a parcel of land within Hamilton Township (hereinafter “Hamilton”). Global Tower sought to construct a cell tower similar to two other towers that had been recently constructed in Hamilton. Despite the fact that the tower’s design and location was similar to the other two towers, the Zoning Hearing Board (hereinafter “ZHB”) denied the application. Hamilton claimed Global failed to show that emergency personnel could reach the site, that the planned gravel road was inadequate (due to its composition and joint driveway concerns), there would be a diminution in nearby property values, that setback requirements would not be met, and there was a threat to the health, safety and welfare, among other concerns.
A year after this action had been commenced, both parties moved for summary judgment concerning two grounds: whether the ZHB unreasonably discriminated against Global and whether the denial was supported by substantial evidence. Global also claimed the ZHB violated state law. The magistrate recommended summary judgment on all counts in favor of Global, as well as the granting of the application and all necessary permits and variances. Hamilton objected to the magistrate’s recommendations concerning the TCA, but failed to object to the state law claim recommendation, which the District Court accepted and adopted as unopposed.
The court provided that the TCA was created to hasten the development of a private telecommunications network while also retaining local control over the siting process. The TCA protects the development of the network by providing standards that local governments must follow. Two of these standards are that a denial must be written and supported by substantial evidence and that a locality cannot discriminate between providers of equivalent services.
The court first addressed whether the denial was based on substantial evidence in the record. Substantial evidence has been defined by the courts to be evidence that “a reasonable mind might accept as adequate to support a conclusion.” The court agreed with the magistrate that the ZHB failed to support their denial of the special use permit by substantial evidence because it applied the wrong burden of proof. The ZHB shifted the burden to Global to show the use would not harm the community, but Hamilton does not have a burden shifting provision in its code. Instead of requiring the objectors to proffer sufficient evidence against the plan, the ZHB incorrectly focused on the deficiencies of Global’s plan. This was evident where the ZHB scrutinized Global’s real estate expert, but provided a conclusory acceptance of the objector’s expert without inquiring into his credibility or methodology. Given these deficiencies, the court found decline in property value could not support the decision under the TCA. Furthermore, the court found that even if the burden was properly applied in this matter, the objectors failed to meet their burden of showing an “abnormal” impact on property values or the health, safety and welfare.
The court next addressed the magistrate’s recommendation to award summary judgment in favor of Global on the TCA discrimination claim. For Global to succeed, it would need to show that it provides functionally equivalent services to other providers and that it was unreasonably discriminated against. This standard requires Global to show its application was similarly situated to the other towers in the jurisdiction. In support of their application, Global provided a comparison chart of the two existing towers and the proposed tower. The magistrate determined the towers were the same concerning impact and structure. The magistrate recommended summary judgment in favor of Global as she found Global met the requirements of the land use code and that the ZHB provided no reasonable basis for the denial. Hamilton objected to the magistrate’s recommendation, claiming the application did not satisfy the requirements of the code and that there was a reasonable basis for the denial.
Global’s application provided that the tower would be located within a one hundred by one hundred foot leased area of land. Hamilton claimed this constituted a “lot,” triggering bulk requirements that Global’s application could not satisfy. Global argued, and the magistrate agreed, that for consideration of the bulk requirements, the “lot” was the entire thirty-three acre tract of land. The district court found the lease of a portion of the land did not constitute “land development,” and as such could not be considered a “lot,” which would have trigged the independent bulk requirements. Thus, this factor could not constitute valid support for a reasonable denial.
The court then addressed the height of the proposed fence. The ordinance states that fences can be no higher than six feet, but Global proposed a seven foot fence. The court ruled that Global was entitled to a variance since both of the other cell tower sites were permitted higher fences.
Next, the court addressed the safety concerns relied on by the ZHB in support of their denial. The ZHB was concerned that emergency personnel could not enter the site if there was an emergency. The court ruled that the safety concerns could not reasonably support the denial, as Global offered to provide Hamilton with keys to the security gate.
The court also found the use of a gravel, rather than a paved, roadway could not support the denial. The local code provides that commercial and industrial land uses need a paved roadway. However, the code provides that a cell tower is an “appropriate public use,” and is thus outside the requirement. In addition, since the driveway was already in existence, a provision requiring joint driveways was also inapplicable and could not support the denial.
Addressing the issue of screening the tower from view, the court found the ZHB’s concerns unreasonable. First, it would be impossible to hide a two hundred fifty foot tower from view. Further, the land owner agreed not to remove vegetation within a fifty foot buffer around the tower site. The court found this met the requirements of the code, and requiring any more would be unreasonable and in conflict with the purposes of the TCA.
As a result of the court finding Global’s site similarly situated to the other sites in the Township, as well as all the reasons for denial being invalid or unsupported, the court adopted the magistrate’s recommendation, finding that the ZHB unreasonably discriminated against Global.
Global Tower v. Hamilton Township, 2012 WL 4061190 (U.S.D.C., M.D. Pa., Sept. 4, 2012).
The opinion can be accessed here.
