Posted by: Patricia Salkin | October 19, 2016

3rd Circuit Court of Appeals Holds Party Failed to Timely Appeal Decision of Zoning Appeals Board Which Granted Operator a Land-Use Variance Only for 65-Foot Radio Antenna

This appeal arose from a land use dispute between Jeffrey DePolo, a federally licensed amateur or “ham” radio enthusiast, and the Township of Tredyffrin. DePolo attempted to have the Township’s Zoning Hearing Board of Appeals (“ZHBA”) approve a 180-foot radio antenna tower on his property so that he could communicate with other ham radio operators around the world. The property was surrounded by mountains or hills, and he claimed a shorter tower would not allow him to reliably communicate with other ham radio operators. The ZHBA denied permission for a 180-foot tower, but agreed to a tower that was 65-feet tall. The ZHBA viewed that intermediate height as a reasonable accommodation under the applicable zoning ordinance.

DePolo did not appeal that decision to the Chester Court of Common Pleas as permitted under state law, but instead filed suit in the U.S. District Court for the Eastern District of Pennsylvania. He claimed that the Township’s zoning ordinance, which prohibited any building taller than 35-feet, was preempted as enacted and as applied under the applicable federal regulation, 47 C.F.R. § 97.15(b), and the closely related FCC declaratory ruling, known as PRB–1. The District Court granted motions to dismiss by the Township’s Board of Supervisors (“BOS”) and the ZHBA based upon its conclusion that the 65-foot variance offered by the ZHBA was a reasonable accommodation. The District Court also concluded that the Township’s zoning ordinance was not preempted by PRB–1.

The court noted that the ZHBA was a state administrative agency acting in a quasi-judicial capacity that resolved this dispute by issuing a written determination containing final findings of fact and conclusions of law. Even though DePolo was aggrieved by the ZHBA’s decision limiting the variance to 65-feet, he had adequate opportunity to litigate the matter beyond the ZHBA by appealing to the appropriate Court of Common Pleas within thirty days of the ZHBA’s decision. Rather than make this appeal, DePolo filed this suit in the District Court, and allowed the thirty-day appeal period under state law to expire. The court held this was fatal to his ability to obtain federal review of his claim. Here, DePolo withdrew his request for a variance before the ZHBA and then failed to challenge its factual findings or legal conclusions in the forum provided under state law. Accordingly, the court held that DePolo was bound by the final judgment of the ZHBA, as its ruling was a final judgment on the merits that was entitled to preclusive effect in federal court.

DePolo v. Bd. of Supervisors Tredyffrin Township, 15-2495, 2016 WL 4525228 (3d Cir. 8/20/30, 2016)

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