Posted by: Patricia Salkin | January 17, 2008

Third Circuit Finds Denial of Tower on Firehouse Land, Funded by Wireless Company to Serve Both, Violates Telecommunications Act

The volunteer fire company operates a firehouse in a medium density residential district, pursuant to a special exception granted about 40 years ago. The radio systems serving the county and the township have coverage gaps and poor communications has contributed to the deaths of two people. Sprint, a private provider of wireless communications service, also has coverage gaps. The fire company and Sprint filed a joint application to build a 133-foot radio tower on the firehouse property. The volunteer fire company could not afford to build the tower without Sprint’s financial contribution.             

The zoning board denied the application, treating it as an application by Sprint alone. The trial court ordered the township to grant the application as an accessory use. The building inspector subsequently refused to issue a permit, claiming that the lease to Sprint would constitute an unlawful subdivision. The court ordered issuance of a permit.             

The appeals court affirmed, holding that denial violated the Telecommunications Act of 1996, 47 U.S.C.A. §332 because it was not supported by substantial evidence. The township focused on ownership of the tower, rather than on land use, according to the court, which noted extensive evidence concerning the need for the tower and safety. The opponents presented generalized objections. The court further held that the denial unlawfully discriminated among providers of functionally equivalent services, noting that a similar joint application between a private provider and a fire company was granted in 1992.  

Ogden Fire Co. v. Upper Chichester Twp., 2007 WL 2875934 ( 3rd Cir. 10/4/2007). 

The opinion can also be accessed at: http://vls.law.villanova.edu/locator/3d/October2007/062297p.pdf  

This case summary is reprinted from Planning & Environmental Law (January 2008) with permission of the American Planning Association.  For more information about this publication see, http://www.planning.org/PEL/index.htm


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