Posted by: Patricia Salkin | December 31, 2007

PA Commonwealth Court Upholds Township Denial of Cell Tower Application Where Proposed Tower is Not Compatible with the District

This case is interesting for a number of reasons.  First, it is the first cell tower case I have read in a long time where the wireless communications company does not raise  the benefits of the Telecommunications Act of 1996 in its appeal of a denial to site a cell tower.  Second, caselaw exists in other states, such as New York, that more strongly indicates that a wireless communications tower does benefit from the public utility exemption.  The best way to reconcile this case with the body of law on the siting of cell towers is that the company simply did not prove that this particular tower was necessary to fill a gap in coverage issue.  I suspect that the outcome would likely have been different if that was a fact.   

Asserting a need to close a gap in coverage, Verizon proposed to build a 195-foot monopole cell tower in a 10,000 square-foot fenced in area that would also house an equipment shelter. The site was on land Verizon leased in an R-1 (Rural Residential) District where cell towers were listed as an expressly permitted use.  At the hearing, Verizon explained why they rejected all alternative sites, and why the proposed site was ideal both because of location and because the area was wooded and would partly conceal the tower.   In response, the Township contended that the tower was a commercial activity that did not belong in the R-1 District, and an expert witness for the neighbors opined that Verizon could not substantiate its gap in coverage claim, and the expert explained that Verizon could achieve its desired coverage by using co-located or multiple facilities of lesser height. The objector’s real estate expert opined that the proposed tower would adversely affect property values.  The zoning board denied the application because the company failed to demonstrate that this tower was needed in the proposed location, that the tower was not compatible with the uses established by the zoning ordinance for the R-1 district, that the tower would dominate the ridge line and be visible from over 50% of the most popular residential areas in the Township, and that their decision was not exclusionary since Verizon could construct a tower in the Commercial District.  Verizon argued, however, that its cellphone tower should be construed as a “principal utility structure,” the siting of which is beyond the municipality’s power to control as the state legislature created an exemption for utilities. On appeal the trial court upheld the board’s denial.   

The Commonwealth Court was asked to consider whether the zoning ordinance is de jure exclusionary with respect to cellphone towers, and whether a cellphone tower is similar to a principal utility structure and to a municipal structure, which would allow its use in an R-1 District.  Turning to the zoning ordinance for guidance, the Court noted that “cellphone towers” or their equivalent are not defined. The ordinance does contain a “savings provision” which provides that “When a specific use is neither permitted nor prohibited in the schedule of district regulations, the [Zoning Board] shall make a determination, as an Administrative Review, as to the similarity or compatibility of the use in question to the permitted uses in the district, basing the decision on the overall intent stipulated for the district.” (emphasis added)  Furthermore, while the zoning ordinance specifically addresses the public utility exemption, noting that such uses are allowed as required by State law, the Court determined that this section is not to be construed as a schedule of district regulations listing a utility structure as an allowable use, because to do so would lead to an absurd result (i.e., Verizon could buy a quarter acre lot in the middle of any residential subdivision and place a tower there).      

Additionally, the Court found no support for Verizon’s argument that the tower was similar to a “municipal structure” since the tower is not to be owned or operated by the municipality. The Court explained that a “similar to” inquiry must look at whether the use serves the public interest, and that the element of public benefit is missing in this case because only Verizon’s commercial interests will be served. While noting that there is a benefit conferred on the public by a cellphone tower because people desire phone coverage, the Court points out that there is an important difference between public and commercial benefits, and further that there has been no finding by a public body that the proposed tower in an R-1 district is even a good idea, let alone serves the public welfare.  Because the zoning board determined that cellphone towers could be placed in commercial districts, the Court held that the zoning ordinance was not de jure exclusionary. 

Cellco Partnership v. North Annville Tp. Zoning Hearing Bd., 2007 WL 4372793 (Pa. Cmwlth. 12/17/2007).  

The opinion can also be accessed at: www.courts.state.pa.us/OpPosting/CWealth/out/1709CD06_12-17-07.pdf    


Responses

  1. It’s interesting to note a material error in footnote 3 of the opinion.

    The footnote says, “The higher the signal strength, the shorter the distance that the service will travel, thereby justifying the need for a taller tower.” In fact, the opposite is true; the higher the signal strength, the farther the signal will travel.

    I suspect the point that was offered by Verizon was that the higher the frequency, the shorter the distance covered. Yet this is an incomplete statement, too, as added power or higher gain antennas impact the actual result.

    Of course, the case didn’t turn on the point I’ve just raised, but it highlights the point that in areas of technology, some courts may not fully understand the foundation underlying the technology.

    Jonathan L. Kramer, Esq.
    Kramer Telecom Law Firm, PC
    Los Angeles, California


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