Plaintiff, Nextel Communications of the Mid-Atlantic, Inc. entered into a lease agreement with the owners of property zoned Rural Residential (“RR”), situated in Ross Township to build a wireless communication tower. It filed an application with Defendant Zoning Hearing Board seeking a special exception use, however after the filing of the application, the Township repealed the Ordinance and adopted a new, revised Zoning Ordinance that eliminated the Industrial Zoning Districts within the Township. Pursuant to the Zoning Ordinance Section 402.A.(15)(b)(9), a cellular tower was a special exception permitted by right in an RR district if the applicant proved to the satisfaction of the Zoning Hearing Board that there were no suitable locations for the antenna on existing towers and/or within commercial and industrial districts.
At the public hearings plaintiff presented the testimony of two site acquisition consultants, a professional land surveyor, and a radio frequency expert. The Board denied Plaintiff’s application because Plaintiff did not qualify for a special exception under section 402.A.(15)(b)(6) because Plaintiff did not adequately investigate locating their facilities on existing towers or explore reasonable opportunities to increase the length of or height of antennas on existing towers. The Board also found that Plaintiff did not qualify for a special exception under section 402.A.(15)(b)(9), because the evidence showed that Plaintiff did not adequately demonstrate that the cellular phone coverage could not be realized by locating a wireless communication tower in the commercial areas of the Township where such uses were permitted. Additionally, the Board found that the evidence disputed that a “significant gap” in coverage existed.
Subsequently, Plaintiff filed this action claiming that the Township violated the federal Telecommunications Act of 1996 (“TCA”), because the denial had the effect of prohibiting the provision of personal wireless service and contrary to the requirements of 47 U.S.C. 332(c)(7)(B)(iii). The United States District Court granted Defendant’s Motion for Summary Judgment stating that Defendant’s denial of Plaintiff’s application did not have the effect of prohibiting services and it was based on substantial evidence.
The Court noted that there are two approaches to use when deciding if there is a significant gap in the ability of remote users to access the national telephone network. The “user-oriented” approach, followed by the Third Circuit, requires the applicant to demonstrate that “the area the new facility will serve is not already served by another provider.” Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Twp., 331 F.3d 386, 398 (3d Cir. 2003). The “multi-provider” approach, endorsed by the FCC, requires applicants to merely show that they do not provide reliable service in a given area, regardless of other carriers’ service in the same area. Plaintiff must show that “a good faith effort has been made to evaluate less intrusive alternatives, which includes considerations of alternative sites, alternative tower designs, placement of antenna on existing structures, and ‘alternative system designs.’ ” Sprint Spectrum, L.P., 606 F. App’x at 671. Additionally, Section 402.A. (15)(b)(6) of the Ross Township Zoning Ordinance states, “An applicant for a new commercial communications tower shall provide evidence to the Zoning Hearing Board that they have investigated co-locating their facilities on an existing tower, and other tall structures and have found such alternative to be unworkable. The reason shall be provided. In an absolute minimum, placement upon existing or approved towers within a mile radius shall be considered in addition to other reasonable opportunities…” Further Section 402.A.(15)(b)(9) “requires an applicant seeking to construct a new cell tower in a Conservation Residential district or Rural Residential district to prove ‘to the satisfaction of the Zoning Hearing Board that there were no suitable locations for the antenna on existing towers and/or within commercial and industrial districts.’ ”
Here, Nextel’s real estate acquisition specialist drove in a one mile radius from the proposed site and found that there were no existing towers, tall structures or other suitable alternative locations within that area. Plaintiff did not consult the FCC to determine if other cellular carriers have erected antennas in the area, which was public record. Plaintiff did not put into evidence whether any other towers owned by any other provider were located within Ross Township. Plaintiff also did not contact any other companies to determine if there was a tower near the subject area to possibly co-locate an antenna. The Board found that Plaintiff did not satisfy the provisions of (15)(b)(6) and (15)(b)(9), because Plaintiff did not conduct a sufficient investigation with respect to co-locating facilities on existing towers or as to the antenna height or length on the existing towers, and that a tower located in a commercial zone. The court found that Plaintiff did not show that a good faith effort was made to evaluate less intrusive alternatives, which includes considerations of alternative sites, alternative tower designs, placement of antenna on existing structures, and ‘alternative system designs. Therefore, the court found that the Board’s decision did not have the effect of prohibiting wireless service in Ross Township.
The court also found that the Board’s decision to deny Plaintiff’s application for a special exception was supported by substantial evidence. The Board found that the information shown on the propagation study was inconsistent with the results of the drive test report. The propagation study showed no coverage in the alleged “significant gap” area, and the drive test study showed that over 75% of the calls were successful. As a result of the differences in studies, the Board found the propagation study unreliable. The Board also found that Plaintiff failed to satisfy the requirements of Section 402.A.(15)(b)(6), because Plaintiff failed to investigate other “reasonable opportunities,” such as how the coverage would change if the height on the existing towers were elevated or co-locating with another carrier. Plaintiff did not contact any of its competitors or consult the FCC database, to determine whether other carriers were located in the area, for a possible co-location.
Nextel Communications of the Mid-Atlantic, Inc. v Zoning Hearing Board of Ross Township, 2016 WL 1271385 (MD PA 3/31/2016)