Posted by: Patricia Salkin | April 6, 2017

Fed. Dist. Court in PA Grants Summary Judgment to City in Claims Arising from Denial of Permit to Construct a Cell Tower

Horvath Towers III, LCC constructed radio towers and sublets the use of those towers to personal wireless communications providers licensed by the Federal Communications Commission (“FCC”). Horvath intended to use the subject land it leased to build a tower which it would then sublease to Limitless Wireless (“Limitless”), a wireless telephone and high speed data internet provider. Horvath and Limitless submitted a building and zoning permit application to the Butler Township Zoning Officer, which was denied. Horvath appealed the denial to the Board and requested a special exception under Section 509 of the Butler Township Zoning Ordinance of 1997 to erect a cell tower in the R-1 District. When this failed, Horvath filed a complaint alleging that the Board’s decision violated two separate provisions of the Telecommunications Act of 1996 (“TCA”).
Horvath first argued in its cross-motion that the Board’s secondary conclusion, that the proposed tower could not meet the requirements under Section 803.3 of the Ordinance for special exceptions, was not supported by substantial evidence in the written record. The court found that it was Horvath’s burden to show it met the similarity test listed in Section 509. Here, there was conflicting evidence regarding whether or not the proposed use was similar to the use allowed by Section 403.1(d). Furthermore, the Board considered the list of municipality-owned towers proffered by Horvath, along with its accompanying photographs, and decided the exhibit was not entitled to any weight. The Board’s written reasoning for rejecting this exhibit included the fact that no municipality-owned towers were shown to be in Schuylkill County and the fact that there was no evidence in the record to indicate “key issues” including: “how tall the illustrative towers depicted in the exhibit were; how near the facilities were to residential communities; and the corresponding zoning districts and regulations.” Accordingly, the court held that the Board’s factual conclusions were supported by the written record.
The Board next contended that Horvath’s unreasonable discrimination claim should fail because no second provider existed. The court noted that Horvath did not respond to this argument in its brief or in its cross-motion, which was sufficient grounds for granting summary judgment in favor of the Board. Additionally, the court agreed with the Board that this claim was not ripe for adjudication without an actual provider as a comparator.
Lastly, the court exercised supplemental jurisdiction on the state law claims, as the law governing Horvath’s state law claim was nearly identical to Horvath’s substantial evidence challenge under the TCA. Similar to the standard under the TCA, substantial evidence in a state zoning appeal referred to “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Since, the court already concluded that the Board’s primary finding was supported by substantial evidence, judgment was entered in favor of the Board on Horvath’s state law claim.
Horvath Towers III, LLC v Zoning Hearing Board of Butler Township, 017 WL 1162905 (MD PA 3/29/017)

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