Ne. Pa. SMSA LP v. Smithfield Twp. Bd. of Supervisors

• Decision Date: 15 January 2020
• Docket Number: 3:17-CV-1521
• Parties: NORTHEAST PENNSYLVANIA SMSA LP, d/b/a Verizon Wireless, Plaintiff, v. The SMITHFIELD TOWNSHIP BOARD OF SUPERVISORS, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

433 F.Supp.3d 703

NORTHEAST PENNSYLVANIA SMSA LP, d/b/a Verizon Wireless, Plaintiff,

v.The SMITHFIELD TOWNSHIP BOARD OF SUPERVISORS, Defendant.

3:17-CV-1521

United States District Court, M.D. Pennsylvania.

Filed January 15, 2020

Richard M. Williams, Lars Henry Anderson, Hourigan, Kluger and Quinn, P.C., Kingston, PA, for Plaintiff.

Ronold J. Karasek, Karasek Law Offices, Bangor, PA, for Defendant.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION

This is an action for alleged violations of the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 332(c)(7)(B), and an appeal under Pennsylvania's Municipalities Planning Code ("MPC"), 53 Pa. Stat. and Cons. Stat. Ann. §§ 10101, et seq. , from a denial of an application to place a wireless communications facility in Monroe County, Pennsylvania. Plaintiff Northeast Pennsylvania SMSA LP, d/b/a Verizon Wireless (the "Plaintiff" or "Verizon"), filed its Complaint, (Doc. 1), on August 25, 2017, against Defendant Smithfield Township Board of Supervisors (the "Defendant" or "Board"). Verizon alleges that the Board's decision to deny Verizon permission to build a ninety-five foot high monopole on property in Smithfield Township violates the TCA because its decision was not supported by "substantial evidence," 47 U.S.C. § 332(c)(7)(B)(iii), and because its decision "prohibit[ed] or [had] the effect of prohibiting the provision of personal wireless services," 47 U.S.C. § 332(c)(7)(B)(i)(II). Claiming the Court's supplemental jurisdiction, Verizon also alleges that the Board violated the MPC because its decision was not based on substantial evidence.

On November 16, 2017, the Board filed a Motion to Dismiss (Doc. 8), which this Court subsequently denied (Doc. 17). On November 16, 2018, the Board filed a motion for summary judgment (Doc. 21). Thereafter, Verizon filed a cross-motion for summary judgment (Doc. 26). Both motions have been fully briefed, and the motions are ripe for disposition. For the reasons stated herein, this Court will grant summary judgment in favor of Verizon on the substantial evidence claim under the TCA and under the MPC. In so doing, the Court also will deem the prohibition of service claim moot.

II. FACTUAL AND PROCEDURAL HISTORY ¹

Verizon has been authorized by the Federal Communications Commission ("FCC") to operate a wireless telephone communication system within its designated frequency spectrum in Monroe County, Pennsylvania.² (Doc. 27, at ¶ 2; Doc. 31, at ¶ 2). As a licensed FCC wireless telephone communication system operator, Verizon is obligated to provide reliable wireless telephone services to its customers. (Doc. 27, at ¶ 3; Doc. 31, at ¶ 3). Verizon operates its system pursuant to the rules and regulations set forth by the FCC and the Federal Aviation Administration ("FAA"). (Doc. 27, at ¶ 4; Doc. 31, at ¶ 4). As an FCC licensed operator, Verizon "must ensure that its telephone signal strength and wireless capacity is sufficient to provide proper reception and communication within its licensed area." (Doc. 27, at ¶ 5; Doc. 31, at ¶ 5).

Verizon entered into a lease agreement with RR2 Airport Road, LLC, for a 75' x 75' parcel of land located at 119 Airport Road in Smithfield, PA. (Doc. 27, at ¶ 8; Doc. 31, at ¶ 8). The agreement permits the use of the premises for constructing, maintaining and operating a communications facility. (Doc. 27, at ¶ 9; Doc. 31, at ¶ 9).

On February 23, 2017, pursuant to the MPC and the Zoning Ordinance of the Smithfield Township, Monroe County, §§ 101 et seq. (hereinafter "Ordinance"), Verizon submitted a conditional use application to the Board for the construction of a communications facility. (Doc. 27, at ¶ 10; Doc. 31, at ¶ 10). In support of its application, Verizon submitted: (1) an Application (Doc. 27-1); (2) the Zoning Plan (Doc. 27-2); (3) Generator Specifications (Doc. 27-3); (4) Structural Letter (Doc. 27-4); (5) FCC License (Doc. 27-5); (6) Radio Frequency Design Report (Doc. 27-6); (7) Interference Analysis (Doc. 27-7); (8) Electromagnetic Emissions Analysis (Doc. 27-8); (9) FAA Determination (Doc. 27-9); (10) Pennsylvania Bureau of Aviation Screening (Doc. 27-10); (11) Memorandum of Lease (Doc. 27-11); (12) National Operations Center Contact (Doc. 27-12); (13) Emergency Service Use Confirmation (Doc. 27-13); (14) Agreement to Provide Removal Bond (Doc. 27-14); (15) Engineering Comment Letter (Doc. 27-15); (16) Revised Plans (Doc. 27-16); (17) Letter from Rettew Associates (Doc. 27-17); (18) Pre-Hearing Statement (Doc. 27-18); (19) Existing In-Building Coverage Map (Doc. 27-19); (20) Proposed In-Building Coverage Map (Doc. 27-20). (Doc. 27, at ¶ 12; Doc. 31, at ¶ 12).

The Board held a hearing on April 26, 2017, and May 31, 2017, regarding Verizon's request. (Doc. 27, at ¶ 11; Doc. 31, at ¶ 11). At the hearing, Verizon presented the testimony of three witnesses, Eric Brinser (civil engineer), Andrew Petersohn (independent radio-frequency expert), and Sue Manchel (site acquisition consultant). (Doc. 27, at ¶ 13; Doc. 31, at ¶ 13). Additionally, two witnesses testified in opposition to Verizon's application at the hearing – Robert Lovenheim (a Township Supervisor and commercial pilot) and Becky Ozgun (a resident of nearby Lake Valhalla and Vice President of the Lake Valhalla Home Association) – and one witness submitted a letter which was read at the hearing – Jeff Root (who operates a skydiving operation at the Stroudsburg-Pocono Airport). (See Doc. 27-23, at 15, ¶ 45). The testimony of the objectors "principally concerned the proximity of the proposed facility to the Stroudsburg Pocono Airport." (Doc. 27, at ¶¶ 29-30; Doc. 31, at ¶¶ 29-30).

On June 21, 2017, the Board denied Verizon's application. (Doc. 27, at ¶ 15; Doc. 31, at ¶ 15). On July 25, 2017, the Board issued a written decision (Doc. 27-23) denying Verizon's application. (Doc. 27, at ¶ 16; Doc. 31, at ¶ 16; see also Doc. 27-23, at 25). The Court reviews the written decision (Doc. 27-23) below.

In its decision, the Board made 51 findings of fact. Among the findings of fact, the Board found that "[t]he property in question is owned by RR2 Airport Road, L.L.C. of East Stroudsburg, Monroe County, PA 18301." (Doc. 27-23, at 7, at ¶ 3). Because the property is located in the Township's M-1 Industrial District, a communications tower "is allowed as a conditional use." (Id. at ¶ 4).

Verizon's "proposed structure is a wireless communications tower that is ninety-five feet tall with a five foot lightning rod at the top for a total of one hundred feet." (Id. at ¶ 5). "The cell tower is in very close proximity to the Stroudsburg – Pocono Airport (which means there is no airport tower directing air traffic)." (Id. at ¶ 6). "The existing property is already developed with several buildings located thereon including a large parking area and the balance of the property is either lawn or wooded." (Id. at 8, ¶ 8). The proposed tower is to contain approximately twelve antennae, each of which is about a foot deep and no more than eight feet in length. (Id. at ¶ 9). Further, "[t]he cell tower pole ... will be a monopole in a 50' by 50' compound with a 75' by 75' leased area with an equipment shelter, screening on the outside and a stone access drive leading to the compound." (Doc. 27-23, at 8, ¶ 10). Verizon is also proposing obstruction lighting and a steel monopole with a galvanized non-reflective finish designed to accommodate two additional carriers. (Id. at ¶ 11). "The equipment platform will be a metal platform raised off the ground with a canopy over it and would stand approximately 12' 7?." (Id. at ¶ 12). "The equipment platform will house electrical equipment necessary for the cell tower. The overall facility will not be manned or occupied so no sewer service or water service is being provided to the facility." (Id. at ¶ 13). A generator will also be operated bimonthly or in the case of an emergency, and "the Applicant is of the position that this generator will not create any noise in the area." (Id. at ¶ 14). To prevent unauthorized access to the facility, an eight-foot high chain link fence with one foot of barbed wire will surround the facility. (Id. at ¶ 15). At the base of the complex, Verizon will also plant evergreens which will reach approximately eight to twelve feet in height, and Verizon would maintain the landscaping screen. (Doc. 27-23, at 9, ¶ 16). Verizon will include "signage ... that will provide a typical warning," two off-street parking spaces, and lighting for inside the compound." (Id. at ¶¶ 17-19). "[T]raffic to and from the site will be minimal with a technician or employee visiting the site every month or every other month." (Id. at ¶ 20).

The Board then turns to reviewing the testimony given at the hearing. In reviewing Eric Brinser's testimony, the Board noted that "[w]hile Mr. Brinser testified that the tower will be built to comply with all applicable industry standards, he did not present any testimony regarding the criteria that shall be taken into consideration by the Township Board of Supervisors (when acting upon a condition use application) as found in ordinance Section 705 C(1)-(5)." (Doc. 27-23, at 10, ¶ 21). The Board further found that "Mr. Brinser confirmed that the cell tower's 100' setback is not sufficient and does overlap onto an existing manufacturing building on the northwest corner of the proposed tower setback radius" and that "Mr. Brinser was not completely familiar with the Zoning Plan as he could not respond to a question regarding a symbol on the Zoning Plan." (Doc. 27-23, at 10, ¶¶ 22-23).

With respect to Mr. Petersohn's testimony, the Board stated that "[he] testified that the site in question was chosen by Verizon Wireless in order to provide more reliable service in the Township as there is spotty coverage due to aggressive terrain. However, the Board of Supervisors does not find that testimony credible or persuasive as township residents (who attended the hearing)...