Ogden Fire Co. No. 1 v. Upper Chichester Tp.

• Decision Date: 04 October 2007
• Docket Number: No. 06-22997.,No. 070-1694.,06-22997.,070-1694.
• Citation: 504 F.3d 370
• Parties: OGDEN FIRE COMPANY NO. 1; Sprint Spectrum, L.P. Appellees v. UPPER CHICHESTER TOWNSHIP; Zoning Hearing Board of Upper Chichester Township, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

504 F.3d 370

OGDEN FIRE COMPANY NO. 1; Sprint Spectrum, L.P. Appellees v. UPPER CHICHESTER TOWNSHIP; Zoning Hearing Board of Upper Chichester Township, Appellants.

No. 06-22997.

No. 070-1694.

United States Court of Appeals, Third Circuit.

Argued: May 21, 2007.

Opinion filed: October 4, 2007.

As Amended October 4, 2007.

John J. Rendemonti, Esq. (Argued), Glenn Mills, PA, Howard J. Gallagher, III, Esq., Gallagher & Gallagher, Media, PA, for the Appellants.

Rudolph Garcia, Esq. (Argued), Buchanan, Ingersoll & Rooney PC, Philadelphia,

PA, John Jay Wills, Esq., Boothwyn, PA, for the Appellees.

Before: McKEE, AMBRO, Circuit Judges and ACKERMAN,^* District Judge.

OPINION

McKEE, Circuit Judge.

Upper Chichester Township and the Zoning Hearing Board of Upper Chichester Township appeal two orders of the district court reversing a determination of the Zoning Hearing Board based upon the district court's conclusion that the denial of requested zoning approvals and a building permit violated the Telecommunications Act of 1996. For the reasons that follow, we will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ogden Fire Company No. 1 ("Ogden"), is a volunteer fire company that provides fire, ambulance, and rescue services to the residents of Upper Chichester Township, Delaware County, Pennsylvania and surrounding areas. It responds to approximately 550 requests for assistance per year. Ogden's firehouse is located in a zoning district that is classified as an R-2 Medium Density Residential District. Ogden uses the Delaware County Emergency Radio Center radio service (the "County System"), which is a 500 MHZ system with three repeaters located throughout Delaware County. This system is associated with the 911 system. Ogden experiences coverage problems in certain areas of the Township. To make matters worse, the County System is not accessible to all public-safety personnel.

Ogden also shares a 150 MHZ radio system (the "Local System") within the Township with other fire companies, local police, school crossing guards and street maintenance crews. However, the Local System does not have repeaters and cannot reach all areas of the Township. The resulting gap in coverage over the Local System has resulted in problems that include fire fighters not being able to communicate with police. The problems have been building for the last ten years and occur on an almost daily basis. In fact, according to testimony on this record, poor radio communication has contributed to the deaths of two people.

Sprint Spectrum, L.P. ("Sprint"), provides personal communications services ("PCS") over a network of wireless telecommunications facilities ("WCF") pursuant to a license from the Federal Communications Commission ("FCC"). Portable telephones and devices using PCS technology operate by sending and receiving radio signals transmitted between the telephone or device and antennas mounted on towers, poles, buildings or other structures. The antennas are connected to transmitters that transmit the signals over landlines that are part of the national telephone network. These antennas and the related equipment are commonly known as a "cell site," and the surrounding area serviced by the antenna, and its associated equipment, is commonly referred to as a "cell."

Telecommunication providers cannot provide reliable service to mobile customers unless there is a continuous series of overlapping cells arranged in a honeycomb-like grid. Absent such interwoven fields of coverage, a user experiences unreliable service upon entering an area without a functioning cell. These problems include the inability to make or receive calls as well as dropped, interrupted, and/or unintelligible calls.

Because portable telephones have very little power, they need to be within two miles of a cell site to function properly, and, the quality of the communication decreases as the distance to the cell site approaches the two mile perimeter. Accordingly, the cells must be closely placed. Sprint's engineers use complex computer programs to determine appropriate locations for cell sites based upon such variables as the boundaries of the cell, topography, and any physical obstructions within the area of coverage.

In order to correct the problems it has encountered with its communications system, Ogden proposed building a radio operations center inside its firehouse at 4300 Naamans Creek Road and a 130 foot radio tower in the rear yard of the firehouse. It is, however, difficult for a volunteer fire company to afford the construction costs of such a project. Accordingly, Ogden and Sprint entered into an agreement that would have addressed Ogden's communications problem and safety concerns while alleviating Sprint's problems with the gaps in its coverage in the vicinity of Ogden's firehouse.

Pursuant to that agreement, Ogden and Sprint (hereinafter referred to jointly as "Ogden/Sprint") filed a joint application with the Zoning Board on August 31, 2004, for approval of the erection of a steel monopole 130 feet high for mounting emergency service and wireless telecommunications antennas. With Sprint's antennas on the top of the monopole, the total height of the tower would be 133 feet. Sprint was to install the tower to meet both its needs and Ogden's needs and then pay monthly rent to Ogden. The Zoning application asked the Board to:

(1) find that the proposed monopole and related radio equipment are permitted as an accessory use to the permitted fire company use on the subject property pursuant to § 303.1 or § 304 of the Zoning Ordinance;¹ (2) grant a variance from the height limitation of § 305.8 of the Zoning Ordinance; (3) approve a special exception for Sprint's proposed wireless communications facility pursuant to §§ 303.7, 1814 and 2106(2) of the Zoning Ordinance; or, in the alternative, (4) grant a variance from the use provisions of § 302 of the Zoning Ordinance to allow the proposed monopole, equipment and use.

Ogden Fire Co. No. 1 v. Upper Chichester Twp., No. 05-1031, 2006 WL 851391, *2 (E.D.Pa. Mar. 30, 2006) ("Ogden I").

During the zoning hearings that followed, Ogden/Sprint presented the testimony of several witnesses to establish that: the tower and equipment were necessary, the tower was an accessory use to the firehouse,² Ogden's use of the tower would be "a municipal or public use," the tower would satisfy the special exception criteria regarding the height of the monopole as an "accessory structure," and, if not, that Ogden/Sprint were entitled to a variance. They also asked the Board to recognize that other carriers providing functionally equivalent services have been granted greater relief than that requested by Ogden/Sprint, and that the proposed monopole/tower was the least intrusive means of addressing Sprint's gap in coverage in the Township.

A. The Zoning Board's decision.

On February 10, 2005, the Zoning Board denied the application in a written opinion that treated the joint application of Ogden/Sprint as one filed solely by Sprint. According to that interpretation, Sprint was requesting Zoning Board approval to construct its own WCF tower, and Ogden would thereafter attach its radio antenna to the tower to enhance Ogden's communication systems. The Zoning Board concluded that Sprint had not established the propriety of erecting a stand-alone WCF tower in an R-2 Residential District. The Board concluded that the WCF was not an accessory structure to the firehouse because it was not a use "customarily incidental and subordinate to the principal use of the land or building and located on the same lot with such principal use." Ogden I, 2006 WL 851391 at *3. The Board also refused to grant the special exception required to build a tower taller than 15 feet because the WCF is not an accessory use or structure to the firehouse. The Board refused to grant a special exception to build the WCF because stand-alone WCF towers are not permitted in R-2 Residential Districts. Finally, the Board also rejected the alternate request for a variance because a 133 foot stand-alone WCF tower is not a structure permitted in an R-2 Residential District and because Sprint had not satisfied the requirements for a variance under the Pennsylvania Municipal Planning Code.

II. DISTRICT COURT PROCEEDINGS

Ogden/Sprint responded by filing a joint complaint against the Township and Zoning Board (hereinafter collectively referred to as the "Township") in district court alleging violations of the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 332, and related claims. In Count I, Ogden/Sprint alleged that the Township violated 47 U.S.C. § 332(c)(7)(B)(i)(I) by unreasonably discriminating among providers of functionally equivalent services in denying Ogden/Sprint's joint application despite having previously approved a similar application filed by Reliance Hook and Ladder Co. No. 1 and Metro Phone in an R-2 Residential District, and having also previously approved the application of AT & T Wireless to build a telecommunications tower in an R-1 Residential District. Count II alleged that the Township violated 47 U.S.C. § 332(c)(7)(B)(iii) because the denial of the Ogden/Sprint application was not supported by substantial evidence. Count III asserted various causes of action under state law that we need not address.

After the close of discovery, the parties filed cross-motions for summary judgment. In a very thorough and well reasoned Memorandum Opinion, the district court granted summary judgment in favor of Ogden/Sprint on their claims under the TCA. See Ogden I, 2006 WL 851391. In ordering relief, the court ordered the Township:

to grant the application of Ogden Fire Co. No. 1 and Sprint Spectrum, L.P., to build a 130 foot monopole radio tower and related radio equipment as an accessory use to Ogden's use of its property as a firehouse and to issue the Plaintiffs the requested special exceptions in accordance with Zoning Ordinance §§ 1706 and 303.7. Upper...