Posted by: Patricia Salkin | January 2, 2012

Fed. Dist. Court Holds Zoning Board’s Denial of Use Variance Did Not Violate the Telecommunications Act

Liberty Towers appealed denial of a use variance request by the Zoning Hearing Board of Falls Township, Pennsylvania alleging the denial of the variance in a residential zone district violated the Telecommunications Act of 1996 as the determination was not supported by substantial evidence and has the effect of prohibiting personal wireless service within the municipality.  The United States District Court, Eastern District of Pennsylvania denied Liberty’s motion for summary judgment and granted the Board’s cross motion for summary judgment, dismissing the case.

Liberty sought to build a one hundred and fifty foot cellular tower that would provide service for four co-locating carriers.  The subject parcel is one acre and is designated as Neighborhood Residential Conservation – a zone district crafted to retain the residential character of the neighborhood.  This zone district permits a single family dwelling to be constructed on the property.  Given the use designation and dimensions of the parcel, Liberty sought both use and area variances to facilitate the tower and its accompanying structures.  After a hearing, the Board denied the use variance request as Liberty failed to show any circumstances in which the subject parcel could not be used as the zone district permitted.  This determination was based on the findings that the property was currently used as provided in the code and the use of a tower on the site was strictly prohibited.

The court first addressed whether the Board’s denial was supported by substantial evidence, applying a deferential standard of review, validating the determination if it is based on “such evidence as a reasonable mind might accept as adequate to support a conclusion.”  In reviewing the record, the court found substantial evidence in support of the Board’s determination that Liberty did not meet the variance requirements in the Town’s zoning code.  This was because Liberty could not provide any evidence that the subject parcel could not be used as zoned.  Thus, the court held that municipalities can deny variances for towers, and not violate the substantial evidence provision, by simply following the municipality’s variance procedure.  If the applicant does not meet the variance procedure, then the municipality is not required to grant the variance under the Telecommunications Act of 1996.

The court then addressed whether the denial had the effect of prohibiting cellular service in the area.  Liberty had the burden to prove that there is a significant gap in coverage and the proposed use is the least intrusive means to fill this gap.  In determining whether there is a gap in coverage, one of two approaches can be used: whether a specific carrier or whether all carriers are lacking coverage in a given area.  The court did not make a decision on what standard applies, as the court determined that Liberty failed to provide sufficient evidence to meet either standard.  The evidence provided by Liberty to show gaps in coverage were maps that were conclusory, only showing where coverage was reliable or unreliable.  The maps contained no factual components.  In addition, where Liberty provided testimony on the unreliability or inadequacy of the coverage, this testimony failed to provide the size or contours of the gaps.  Further supporting this determination, the court noted that Liberty failed to provide any figures on dropped calls, call failures, and failed to conduct a drive test measuring coverage in the area.  Liberty also failed to show that utilizing the subject parcel was the least intrusive means possible.  Thus, Liberty failed to show the Board’s determination resulted in a prohibition of personal wireless service in the area. As a result, both of Liberty’s TCA claims were dismissed.

Liberty Towers v. Zoning Hearing Board of Falls Township, No. 10-7149, 2011 WL 6091081 (U.S.D.C., E.D.Pa. 12/6/2011),

The opinion can be accessed at: http://www.paed.uscourts.gov/documents/opinions/11D1327P.pdf.


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