Global Tower, LLC v. Hamilton Twp.
| Decision Date | 03 July 2012 |
| Docket Number | NO. 1:10-CV-1705,1:10-CV-1705 |
| Parties | GLOBAL TOWER, LLC v. HAMILTON TWP. and ZONING HEARING BOARD OF HAMILTON TWP |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Docs. 19, 22)
This suit ensued after plaintiff's cell tower permit application was denied by a local zoning board. Global Tower, LLC, alleges that the adverse decision by Hamilton Township and its zoning hearing board (collectively, "Hamilton") was not supported by substantial evidence as required by the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 332(c)(7)(B)(iii) (2006). Global also contends that Hamilton unreasonably discriminated against it because providers of functionally equivalent services were granted special use permits in similar situations. Global further alleges a state law claim that the Hamilton Twp. Zoning Hearing Board exceeded its legal authority by declaring, sua sponte, that the cell tower was a "land development" requiring approval by another body.
Before the court are cross motions for summary judgment.1 The motions have been referred to the undersigned for a report and recommendation and are now ripe for disposition.2
Global is a limited liability company incorporated in Delaware with a principal place of business in Florida. (Docs. 20, 30 ¶ 1). Global is a company which leases real estate on which it constructs radio towers, which it then subleases to FCC-licensed personal wireless communications providers. (Docs. 23, 32 ¶ 1).3 Hamilton Township is a political subdivision located in MonroeCounty, Pennsylvania. (Id. at ¶ 2). The Hamilton Township Zoning Board is an instrumentality of the Township. (Id. at ¶ 3).
On December 16, 2008, Global, through one of its affiliates, entered into a lease agreement with Lloyd and Shirley Singer, as trustees of the Singer Trust. (Id. at ¶ 4). The Singers owned a 30-acre tract in Hamilton Twp., which is in a partially-developed rural area. (Id. at ¶¶ 5, 6). The Singer Tract includes a structure which has been described as barn, and has a gravel or dirt drive. (Id. at ¶ 6). The lease was for a term of five years, with five successive five-year renewal terms, for a total potential lease of 30 years. (Id. at ¶ 8). Global intended to construct a tower which it would then sublease to a personal wireless service provider. (Doc. 23, ¶ 9).
On February 17, 2009, Global4 filed an application with the Hamilton Twp. Zoning Board requesting special use5 approval to construct the tower. (Docs. 23,32 ¶ 10). Global subsequently amended its application on February 2, 2010 to reflect the proposed reduction in tower height from 300 feet to 250 feet. (Id. at ¶ 12).
The tower is to be a three-sided lattice-type construction, with clusters of antennae to be mounted in various locations on the tower, with a 7 foot lightening rod on top. (Id. at ¶ 13). The construction of the tower is to be in accordance with national and local codes, subject to review by the Hamilton Twp. code enforcement officer. (Id. at ¶ 14). The application further specifies that the tower will be unmanned and that it will not require water or sewer services, but only require underground telephone and electric lines. (Id. at ¶¶ 15, 16). Access to the tower is to be via the existing drive, with minor improvements made thereto. (Id. at ¶ 17). The landowner testified that he understood that, under the lease, Global would provide maintenance to the tower and surrounding areas. (Id. at ¶ 19).
The parties dispute whether the proposed tower can be described as "distant" from neighboring properties, but agree the location can be described as follows:
The Tower would be 361 feet from Pensyl Creek Road, 474 feet from the northern boundary of the Singer Tract; 326 feet from the eastern boundary of the Singer Tract, and 260 feet from the southern boundary of the Singer Tract.
More importantly, the Singer Tract is located in a C Zoning District which, pursuant to §402.2 of the Hamilton Twp. Zoning Ordinance ("Ordinance"), permits radio and television transmission or receiving towers as a special use. (Id. at ¶ 22). Other permitted uses in C districts include, inter alia, multi-family residential buildings, commercial and limited commercial uses, light industrial uses and accessory uses and essential services. (Id. at ¶ 23). Section 402.2 also provides, inter alia, that a special use not cause injury to other property or jeopardize public health, safety, welfare or convenience. (Docs.20, 30 ¶ 9; Doc. 23-4, p. 31–32).
Twenty hearings on the Application were held between April 7, 2009 and June 10, 2010. (Docs. 23, 32 ¶ 27). The Board also conducted a view of the Singer Tract on March 17, 2010, during which Global conducted a balloon float to aheight of approximately 250 feet. (Id. at ¶ 28). Global offered the following testimony: Frank Chlebnikow, an expert on land use, zoning and community planning; John Doyle, a real estate appraiser; and Michael Bohlinger, a civil structural engineer. (Id. at ¶ 29). An objector to the proposed tower, Leopold Zappler, offered the testimony of Thomas McKeown, a real estate appraiser and R. Douglas Olmstead, Jr., P.E., a civil engineer. (Id. at ¶ 30). At the conclusion of the hearing, Global and the Singers agreed to the imposition of several conditions on the Application, in response to concerns raised during the hearing. (Id. at ¶ 31). The Board denied Global's Application for special use by a written decision on July 14, 2010. (Id. at ¶ 32).
Prior to ruling on Global's Application, the Board had approved the applications of two other radio towers, Sprint Spectrum and PA Cellular. (Id. at ¶ 33). The two towers had similar characteristics to the tower proposed by Global, although the PA Cellular tower was located in an A zoning district.6 The applications for towers by both Sprint and PA Cellular were approved by the Board as special uses. (Id. at ¶ 35). The Sprint tower, whose special use application was approved on February 1, 2000, is (like Global's) a 250-foot lattice tower located in a C zoning district. (Id. at ¶¶ 37, 39, 40).
Global contends, and offered evidence, that both its tower and the Sprint tower are similar and are in primarily rural areas. (Doc. 23, ¶ 41). Additionally, the Sprint tower is located on a site approximately 784 feet in elevation, on a 50 x 50 foot leased area of a 10.81 acre tract. (Id. at ¶¶ 43, 44). The Global tower would be on a site approximately 626–628 feet in elevation, on a 100 X 100 foot leased tract on a 30 acre parcel. (Id.). In addition, the following characteristics are common to both towers: three-legged lattice design; equipment cabinets; 7-foot fencing topped with barbed wire; lighted; unmanned; provide for future use by other tower companies; and accessed by private drive. (Id. at ¶ 45).
As with the proposed tower, Sprint's tower is visible above the tree line in various areas of the Township. (Id. at ¶ 46). No landscaping or screening of Sprint's tower was proposed and the Board stated that "there [was] no such landscaping or screening that would buffer or screen a 250 foot tall tower." (Id. at ¶ 47). Sprint's lease term was for 5 years with 4 additional 5-year renewal terms. (Id. at ¶ 48). Given the perceived likelihood that the tower would present an attractive nuisance to those who may wish to climb the tower or attempt to enter the unmanned equipment shelter with its valuable electronic equipment, the Board found that special circumstances warranted approval of Sprint's request to erect a 7-foot fence topped with barbed wire, finding that it would both secure Sprint'sequipment and property as well as deter unauthorized entry on the site. (Id. at ¶ 49). Additionally, no evidence was presented that Sprint's proposed tower would cause substantial injury to the value of other property or that it would negatively impact the public health, safety or welfare. (Id. at ¶ 50; Docs. 20, 30 ¶ 170).
The PA Cellular tower was approved by the Board on November 6, 1996. (Docs. 23, 32 ¶ 52). It is lattice structure approximately 280 feet in height located in the center of the located on a 150 X 150 foot leased tract of 36 acres. (Id. at ¶¶ 52, 53). The PA Cellular tower is located in an A zoning district, an area which permits single and multi-family residences, agricultural and conservational uses. (Id. at ¶ 53; Doc. 23-4, p. 23). It is on a site approximately 700 feet in elevation, in a heavily-wooded area providing natural landscaping and screening. (Id. at ¶¶ 54, 55). Like the Sprint tower, the Board found that "no landscaping or screening would buffer or screen a 280 foot tall tower. (Docs. 32, ¶ 55).7 Additionally, PA Cellular sought, and was granted, a variance to erect an 8 foot fence topped with barbed wire around the tower site, given its attractiveness to "juveniles and others who may wish to climb the tower or attempt to enter the unmanned equipmentshelter" containing "valuable electronic equipment." (Docs. 23, 32 ¶ 56). As with the Global proposal and the Sprint tower, the PA Cellular tower: is a three-legged lattice design; has equipment cabinets; is lighted and unmanned; is accessed by private drive; and is gated. (Id. at ¶ 57). Based on the applicant's uncontroverted testimony, the Board concluded that he PA Cellular tower would not substantially impact property values nor negatively affect public health, safety, welfare or convenience. (Id. at ¶ 58).8
As with the Sprint and PA Cellular towers, the Board concluded that Global's proposed lease area constituted a new "lot." (Id. at ¶ 62).9 Section 501.5 of the Ordinance also allowed that "more than one structure containing a permitted . . . use . . . [could] be erected on a single lot, provided that the yard, lot area and other requirements . . . [are] met for each structure as though it were on an individual lot." (Id. at ¶ 66). Consistent with the...
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