Bell Atlantic Mobile v. Zoning Bd. of Butler Tp.

• Decision Date: 29 March 2001
• Docket Number: No. CIV.A. 97-1918.,CIV.A. 97-1918.
• Citation: 138 F.Supp.2d 668
• Parties: BELL ATLANTIC MOBILE, INC., Plaintiff, v. The ZONING BOARD OF BUTLER TOWNSHIP, Defendant. Kathleen P. Hawk, Consolidated Plaintiff, v. The Zoning Board Of Butler Township, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

138 F.Supp.2d 668

BELL ATLANTIC MOBILE, INC., Plaintiff, v. The ZONING BOARD OF BUTLER TOWNSHIP, Defendant. Kathleen P. Hawk, Consolidated Plaintiff, v. The Zoning Board Of Butler Township, Defendant.

No. CIV.A. 97-1918.

United States District Court, W.D. Pennsylvania.

March 29, 2001.

William R. Sitting, Jr., Sitting, Cortese & Wratcher, Pittsburgh, PA, for Bell Atlantic Mobile.

Kathleen P. Hawk, Butler, PA, Pro se.

Bruno A. Muscatello and John M. Biondi, Stepanian & Muscatello, Butler, PA, for Zoning Hearing Board of Butler Tp.

MEMORANDUM

LANCASTER, District Judge.

This action is a consolidation of two lawsuits involving issues related to plaintiff Bell Atlantic Mobile's ("BAM") desire to repeal portions of defendant the Zoning Board of Butler Township's ("Zoning Board") 1997 ruling. That ruling placed limitations on the future construction of a tower and related facilities for the operation of a wireless telecommunications network. BAM contends that the limitations violate, inter alia, the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (1996) ("FTA").

The court conducted a bench trial on February 12, 2001. For the reasons that follow, the court concludes that BAM's claims are not ripe for review, and Hawk's claims are not completely pre-empted by the FTA. Accordingly, the court dismisses BAM's claims and remands Hawk's claims to the Butler County Court of Common Pleas.

In accordance with Fed.R.Civ.P. 52, the following constitutes the findings by the court.

I. FINDINGS OF FACT

A. Procedural Background Facts

In the first lawsuit, BAM seeks declaratory relief to redress the alleged deprivation of rights based on, inter alia, violations of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (1996) ("FTA") insofar as the Zoning Board's 1997 ruling placed inappropriate limitations on any future construction of towers and related telecommunications-related facilities.¹ Pro se plaintiff Kathleen P. Hawk ("Hawk") eventually intervened in this first lawsuit.

The second lawsuit concerns Hawk's appeal to the Butler County Court of Common Pleas of the Zoning Board's decision to remove the conditions imposed in 1990 on the construction of BAM's tower facilities. BAM intervened as a plaintiff in Hawk's appeal. BAM then removed the Butler County case to federal court.

Thereafter, with BAM's case against the Zoning Board already before this court and Hawk's related Butler County case removed to this court, Hawk moved for the consolidation of both cases. This court consolidated the cases into the present action and heard the parties' positions through a non-jury trial.

B. Substantive Background Facts

BAM is the lessee of property located on West McQuistion Road in Butler Township, Pennsylvania. BAM holds a Federal Communications Commission ("FCC") license for the ownership, construction and operation of a wireless telecommunications network in a region, which includes BAM's leased property, designated as the Pennsylvania Service Area No. 6. BAM's leased property is in close proximity to a residential neighborhood where Hawk lives.

In 1990, BAM applied for Zoning Board approval to construct a tower facility on the property. The Zoning Board approved the application subject to 11 conditions, including conditions limiting total power output and collocation rights. Because of litigation involving the granting of the application, BAM did not begin construction on the tower until 1994.

By 1997, the increased demand for wireless services created capacity problems for BAM and other carriers requesting to use the tower. Accordingly, BAM applied to the Zoning Board to remove several of the 11 conditions that impeded BAM's ability to technologically upgrade its facilities to meet increased demand. After hearing evidence on the issue, the Zoning Board agreed to remove the offending conditions. The Zoning Board, however, added nine new conditions. BAM finds fault with the following two new conditions:

I. The expansion of the use must not result in any additional buildings or additions to buildings, other than those shown on the currently approved Land Development Plan.

II. As the tower is located in a residential zone, next to a residential neighborhood, large dish type antennae and other visible additions to the tower structure, other than additional antennae and equipment similar in appearance to those already on the tower, are not approved by this decision.

BAM contends that the Zoning Board's new conditions violate the FTA, the Omnibus Budget Reconciliation Act of 1993, 7 U.S.C. § 5623, and the zoning laws of the Commonwealth of Pennsylvania. The Zoning Board denies that its ruling and conditions violate any laws.

As discussed above, however, this case has another facet. Consolidated plaintiff Hawk, a resident in close proximity to the BAM tower and facilities, alleges that the removal of the 1990 conditions in 1997 was arbitrary, capricious, an abuse of discretion, and error of law. Hawk's primary concern rests upon her fears of the purported environmental effects of radio frequency emissions produced by BAM's facilities. On February 12, 2001, this court held a non-jury trial to address the parties' contentions.

II. CONCLUSIONS OF LAW

A. The Ripeness of BAM's Challenge to the Zoning Board's Conditions

Article III, section 2 of the United States Constitution requires an actual case or controversy for a federal court to have jurisdiction. One aspect of a determination of the existence of a case or controversy is whether the matter is ripe for resolution.²

The ripeness doctrine prevents "`courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements.'" Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 147 (3d Cir.2000) (quoting Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1246-47 (3d Cir.1996)). To determine whether a claim is ripe, a court must weigh the hardship to the parties of withholding court consideration and the fitness of the issues for judicial review. Planned Parenthood, 220 F.3d at 148; Pic-A-State, 76 F.3d at 1298; Presbytery of N.J. of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462-63 (3d Cir.1994). In the declaratory judgment context, however, courts in the Third Circuit refine the ripeness test because declaratory judgments are typically sought before a completed injury has occurred. Pic-A-State, 76 F.3d at 1298. An example of such a situation is when a party seeks the preenforcement review of a statute or regulation. Presbytery of N.J., 40 F.3d at 1463. This refining of the ripeness test involves a three-fold rubric: (1) the adversity of the parties' interests; (2) the probable conclusiveness of a judgment; and (3) the practical utility to the parties of rendering a judgment. NE Hub Partners, L.P. v. CNG Trans. Corp., 239 F.3d 333, 343-44 (3d Cir.2001).

The first prong of the test, the adversity of the parties' interests, involves an analysis of whether the parties are so situated that they have adverse legal interests sufficient for there to be an actual controversy. Presbytery of N.J., 40 F.3d at 1463. Although a party seeking review need not have suffered a completed harm to establish adversity of interest, it is necessary that there be a substantial threat of real harm and that the threat must remain real and immediate throughout the course of the litigation. Id. Interests are also sufficiently adverse even if a government party has not enforced an ordinance or law against a party if the ordinance or law has caused the party to suffer economic harm and the party's further attempt to pursue its business would result in the risk of serious penalties. Pic-A-State, 76 F.3d at 1298-99. See also NE Hub, 239 F.3d at 343-44 (citing cases and noting that courts have found insufficient adversity for ripeness where the chance of the government defendant enforcing its laws against plaintiff is but a contingency).

The second prong of the ripeness test is the conclusiveness of a judgment which "is a short-hand term for whether a declaratory judgment definitively would decide the parties' rights." NE Hub, 239 F.3d at 344. In addition, the consideration of conclusiveness addresses the extent to which further factual development of the case would facilitate decision, so as to avoid the court issuing an advisory opinion, or whether the question presented is predominantly legal. Id.

The third prong of the ripeness test is the practical utility of the court issuing an opinion. That is, the court must consider "`whether the parties' plans of action are likely to be affected by a declaratory judgment.'" Pic-A-State, 76 F.3d at 1300 (quoting Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 649 n. 9 (3d Cir.1990)). The court should also consider the hardship to the parties of withholding judgment. NE Hub, 239 F.3d at 344-45.

Applying each of these prongs to the case at bar, it is readily apparent that BAM cannot meet all three essential prongs of the ripeness test.³

Based on the parties' pleadings and the evidence presented at trial, the court concludes that the parties' interests are insufficiently adverse to present an actual controversy and BAM's claims do not satisfy the first prong. For example, BAM has not applied for a permit to construct modifications to its tower and related facilities. Such a permit would undoubtedly detail exactly what it intends to construct and how, if at all, these plans may be adverse to the Zoning Board's position, i.e., its ordinance. In addition, the testimony from BAM's witnesses at trial addressed only issues of potential modifications of the tower facility. No testimony, however, concerned concrete, specific, imminent plans to modify the Butler township tower. Accordingly, the court cannot conclude that BAM's position is necessarily adverse to the Zoning Board's position, i.e., the two Zoning Board provisions stated in full above.

Applying the facts to the second...