APT Pittsburgh Ltd. v. Penn Township Butler Cnty of PA

• Citation: 196 F.3d 469
• Decision Date: 08 November 1999
• Docket Number: No. 98-3546,No. 98-3519,98-3546,98-3519
• Parties: (3rd Cir. 1999) APT PITTSBURGH LIMITED PARTNERSHIP Appellant in, v. PENN TOWNSHIP BUTLER COUNTY OF PENNSYLVANIA, a Political subdivision of the Commonwealth of Pennsylvania, PENN TOWNSHIP BOARD OF SUPERVISORS and PENN TOWNSHIP ZONING HEARING BOARD Appellants in NOS. 98-3519 and 98-3546
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 469

196 F.3d 469 (3rd Cir. 1999)

APT PITTSBURGH LIMITED PARTNERSHIP Appellant in No. 98-3546, v. PENN TOWNSHIP BUTLER COUNTY OF PENNSYLVANIA, a Political subdivision of the Commonwealth of Pennsylvania, PENN TOWNSHIP BOARD OF SUPERVISORS and PENN TOWNSHIP ZONING HEARING BOARD Appellants in No. 98-3519

NOS. 98-3519 and 98-3546

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued May 6, 1999

Filed November 8, 1999

On Appeal From the United States District Court For the Western District of Pennsylvania, (D.C. Civil Action No. 98-cv-00129), District Judge: Honorable Donetta W. Ambrose [Copyrighted Material Omitted] Clifford B. Levine (Argued), Thorp, Reed & Armstrong, One Riverfront Center, Pittsburgh, PA 15222, Attorney for Appellee/Cross Appellant APT Pittsburgh Limited Partnership

David F. Toal (Argued), Frank, Bails, Murcko & Toal, 707 Grant Street, 33rd Floor, Gulf Tower, Pittsburgh, PA 15219, Attorney for Amicus Curiae, Personal Communications Industry, Association

Thomas L. Wenger, Steven R. Williams, Wix, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg, PA 17108-0845, Attorneys for Amicus Curiae, Pennsylvania State Association of, Township Supervisors

Philip P. Lope (Argued), Lope & Houlihan, 207 East Grandview Avenue, Zelienople, PA 16063, Attorney for Appellants/Cross, Appellees

BEFORE: NYGAARD, ALDISERT and STAPLETON, Circuit Judges

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Penn Township ("Township") appeals the District Court's order directing it to allow APT Pittsburgh Limited Partnership ("APT") to erect a communications tower for its Personal Communications System ("PCS") at a designated site within the Township. The Township claims that the District Court erred in concluding that its zoning ordinance was impermissibly exclusionary under the Pennsylvania Constitution. APT defends the District Court's conclusion on that score and cross-appeals the District Court's conclusion that the Township's zoning ordinance did not also violate the 1996 Telecommunications Act ("TCA"), 47 U.S.C. S 332(c)(7)(B)(i)(II) & (iii), and, as a result, 42 U.S.C. S 1983 as well. We conclude that the Township's ordinance is not invalid under state law or the TCA and will reverse.

I.

APT holds a license from the Federal Communications Commission ("FCC") to provide wireless PCS services in the Pittsburgh Major Trading Area ("PMTA"), which includes Penn Township. APT's FCC license requires it to provide "seamless" coverage in the PMTA. PCS systems are arranged around service "cells" that are anchored upon a communications facility that transmits and receives signals from PCS users traveling within the cell. The cells are arranged in a "honeycomb" pattern, each bordering the next so that users are passed between facilities as they travel. Communications facilities are essentially antennae mounted upon existing structures, new communications towers, and even include smaller units placed upon telephone and power line poles. Transmissions between communications facilities and mobile users operate on a "line of sight basis." As a result, antennae height becomes a crucial factor in areas with hilly or mountainous terrain and other physical obstructions.

APT's PMTA service honeycomb suffered from a gap in coverage along the major Route 8 corridor in the Township. As a result, APT decided to create a new cell by installing a new communications facility in the Township. Because the Township's topography is marked by rolling hills, APT decided to build a new communications tower to provide the height necessary to provide efficient service in the new cell. APT identified a suitable site at 130 Winters Road, which is owned by Chris Smith ("Smith Property"). The site was located on a 73 acre tract in a rural wooded area in the Township's residential RE zoning district ("RE District"). Soon thereafter, however, the Township passed Ordinance 109 which amended the existing zoning regime to restrict communications towers to the Township's light industrial M Districts.¹

To comply with the new Ordinance, APT conducted a three month investigation to find a suitable tower site in one of the Township's three M Districts. APT eventually concluded, however, that land in the M Districts was either not technologically feasible or unavailable. APT then decided to enter into a lease agreement for the Smith Property and applied to the Township's Zoning Hearing Board ("ZHB") for a zoning variance to except the Smith Property from Ordinance 109's prohibition upon communications towers in RE Districts. APT proposed to erect a 160 lattice tower that could accommodate six antennae and would not require FAA lighting. In the event that the ZHB concluded that a variance was not in order, the application asserted two additional alternative grounds for relief by claiming that the Township's zoning regime (i) was impermissibly exclusionary under the Pennsylvania Constitution, and (ii) violated S 332(c)(7)(B)(i)(II) of the TCA because it "had the effect of prohibiting" the provision of PCS services in the Township. APT contended that both alternative grounds entitled it to site specific relief permitting it to build its proposed tower on the Smith Property.

The ZHB held a public hearing to consider APT's application. Normally, three ZHB officers preside over such hearings, but only two officers were available for APT's hearing. Nonetheless, APT and the Township consented to have their dispute resolved by a two-officer board. APT presented documentary exhibits and three witnesses in support of its application. A number of members of the public spoke in opposition to APT's proposal.

The ZHB issued a written decision with findings of fact and conclusions of law that denied APT's requests. The decision summarized the legal requirements for a variance and explained that APT had failed to satisfy those requirements. With respect to APT's two alternative challenges to Ordinance 109's validity, the decision stated that "by reason of a split decision by the [ZHB], with only two members participating, the challenges to the Ordinance are deemed denied." (A42)

APT then filed this suit in the District Court to challenge the ZHB's decision. Treating the parties' submissions as cross-motions for summary judgment, and considering only the ZHB's record, the District Court agreed with APT that Ordinance 109 was impermissibly exclusionary, but denied APT's federal claims. It entered an order directing the Township to allow APT to build its tower on the Smith Property. Both parties appeal.

II.

Congress enacted the TCA to provide "a pro-competitive, de-regulatory national policy framework designed to rapidly accelerate private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition." H.R. Conf. Rep. No. 104-458 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 1124. Section 332(c)(7) of the TCA expressly preserves the traditional authority enjoyed by state and local government to regulate land use and zoning, but places several substantive and procedural limits upon that authority when it is exercised in relation to personal wireless service facilities:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof --

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

47 U.S.C. S 332(c)(7).

Two of the TCA's limitations on state and local regulation of land use are implicated in this appeal. The first is its ban on regulations that "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. S 332(c)(7)(B)(i)(II). The second is the requirement that any denial of a request to place, construct, or modify personal wireless service facilities must "be in writing and supported by substantial evidence contained in a written record." Id. S...