Third Circuit CA Affirms District Court Ruling that ZBA Violated the TCA in Denying Variance Requests for Cell Tower

This post was authored by Caleb Brown, Jacob D. Fuchsberg Touro Law Center

Verizon wireless brought suit against the White Deer Township Zoning Hearing Board, alleging that zoning board’s denial of their requested variance to allow construction of cell phone tower violated the Telecommunications Act. Verizon wanted to construct a cell tower in White Deer due to issues of phone calls being dropped and overall poor service in the community. This cell tower required several variances which were all denied by the Zoning Board. The Zoning Board found that Verizon’s hardship it alleged was not sufficiently pleaded because it was not a hardship connected to the capacity for the property to be used reasonably. Instead, the hardship was connected capacity to use the property as desired. Furthermore, the Zoning Board explained, its “set back requirements serve a legitimate zoning interest to protect the property owners, who use the property, and others who may have occasion to be immediately outside the property’s perimeter, if the monopole structure fails.”

Verizon sued under the Telecommunications Act (TCA) which led to the District Court ruling reversing finding that the Zoning Board’s decision violated the TCA because it had the effect of prohibiting personal wireless services. The District Court granted summary judgment for Verizon and ordered the Zoning Board to approve the variance application. The Zoning Board appealed.

The court in providing its reasoning behind affirming the decision pondered two different approaches for its basis to uphold. To start, the court discussed a two-part test from a case known as APT Pittsburgh. This case lays out deciding factors as to whether local government action has the effect of prohibiting the provision of personal wireless services. First, the provider must prove there is a significant gap in wireless service and, second, the provider must show it is filling that gap in the least intrusive manner. In both tests, the court ruled that the Zoning Board’s variance application denial resulted in prohibiting the provision of personal wireless services, thus making it unlawful.

Next, the court discussed the “materially inhibit” standard, which was adopted in 2018, by the Federal Communications Communication (“FCC”) which states local government action “constitutes an effective prohibition if it materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory market.” The court felt this standard resonated more with the TCA’s goals of creating and promoting competition, establishing higher quality services for consumers, and encouraging the development and production of new telecommunications technologies.

Ultimately the court decided to use the materially inhibit standard when making its decision. The court deemed that insufficiency in coverage, network capacity, 5G services or new technology, all as basis to warrant a variance. The Zoning Board by blocking the variance was deemed to be preventing providers from meeting the broader interests of the public. Last, the court stated that the Zoning Board materially inhibited Verizon from being able to compete in a fair and balanced market because denying the variance prevented them from providing wireless services without having to incur unreasonable costs.

Therefore, the court held that White Deer Zoning Board effectively prohibited the provision of personal wireless services when it denied Verizon’s variance application and in turn upheld the decision of the District Court.

Cellco Partnership v White Deer Township Zoning Hearing Board, 2023 WL 4537717 (3rd Cir. CA. 7/14/2023)