Omnipoint Communications, Inc. v. Penn Forest Tp.

• Decision Date: 31 March 1999
• Docket Number: No. 3:CV-97-1584.,3:CV-97-1584.
• Citation: 42 F.Supp.2d 493
• Parties: OMNIPOINT COMMUNICATIONS, INC., Plaintiff, v. PENN FOREST TOWNSHIP, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

42 F.Supp.2d 493

OMNIPOINT COMMUNICATIONS, INC., Plaintiff, v.PENN FOREST TOWNSHIP, Defendant.

No. 3:CV-97-1584.

United States District Court, M.D. Pennsylvania.

March 31, 1999.

COPYRIGHT MATERIAL OMITTED

James A. Swetz, Stroudsburg, PA, for plaintiff.

Anthony Piazza, Kathleen E. Holmes, Lancaster, PA, for defendant.

MEMORANDUM

VANASKIE, District Judge.

PlaintiffOmnipoint Communications, Inc.(Omnipoint) filed this action under 42 U.S.C. § 1983 and the Telecommunication Act of 1996, 47 U.S.C. § 332(c)(7), contending that the defendantPenn Forest Township (Penn Forest) improperly denied Omnipoint's request to place a 150 foot monopole on a 1.49 acre lot in a C-1 zoned area.(Dkt. Entry 1.)In its complaint, Omnipoint sought mandamus relief in addition to monetary damages.On February 13, 1998, Penn Forest moved to dismiss the complaint, contending, inter alia, that Omnipoint had failed to alleged sufficient facts to support a claim for mandamus relief and that a § 1983 claim for monetary damages cannot be based upon a violation of the Telecommunications Act.(Dkt. Entry 12.)On March 16, 1998, Omnipoint moved for summary judgment and for the issuance of peremptory judgment of mandamus.(Dkt. Entry 16.)

Because the denial of Omnipoint's request to erect its 150 foot monopole was not supported by substantial evidence, Omnipoint's motion for summary judgment will be granted and a peremptory judgment of mandamus will be entered against Penn Forest.Because Congress has provided a comprehensive mechanism for judicial review for alleged violations of the Telecommunications Act, thereby implicitly foreclosing a § 1983 action, Penn Forest's motion to dismissthe § 1983 claim will be granted.

I.BACKGROUND¹

In enacting the Telecommunications Ac of 1996, Congress extended federal court jurisdiction to local zoning decisions affecting the placement of communications antennae needed to create a seamless system for the transmission of wireless communications.To understand why Congress made the federal courts the fora for adjudication of zoning disputes, a brief narration of the manner in which personal wireless communications systems operate is instructive:

[Personal Communication Services] and wide area [specialized mobile radio services] operate by transmitting low power radio signals between mobile, wireless units and fixed antennae mounted on towers, buildings, or other structures.Signals generated by mobile transmitters are fed to electronic cabinets at the base of the antennae, where they are connected to telephone lines, over which the transmission is routed to ordinary telephone equipment located anywhere in the world.A single antenna and its related equipment cabinet are called a "cell site."

The distance over which the low-power signals emitted by mobile transmitters may be effectively broadcast to fixed, cell site antennae is limited to a relatively small geographic area, called a "cell."Accordingly, an overlapping, interconnected quilt of cells must be stitched together to provide seamless coverage.Where there is a "gap" in the pattern, the user's call is "dropped" or "disconnected."

Sprint Spectrum L.P. v. Jefferson County,968 F.Supp. 1457, 1460(N.D.Ala.1997).

On January 28, 1997, Omnipoint made an application to build a 150 foot monopole tower on a 1.49 acre lot in the Penn Forest Streams Development in connection with Omnipoint's efforts to develop a personal wireless telecommunications system in Northeastern Pennsylvania.(Def's SMF (Dkt. Entry 17)¶ 8.)The proposed property was zoned as a C-1 district.On February 7, 1997, Roseann Cochrane, a Penn Forest Zoning Officer, denied the application on the ground that a communications tower was not a permitted use in a C-1 zone and instructed Omnipoint that a use and height variance was required.(Pl's SMF (Dkt. Entry 17)¶ 10.)Omnipoint then filed a request for a variance with the Penn Forest Hearing Board.(Id.¶ 11.)

On April 3, 1997, a public hearing was conducted.Omnipoint participated in the hearing without legal counsel.The Hearing Board denied the request for a use variance.(Pl's Exs. (Dkt. Entry 18) Ex.A.) Observing that § 5.300 of the Ordinance required a minimum lot size of 2 acres in a C-1 district, (id.¶ 4), the Hearing Board concluded that Omnipoint needed a use variance before it would be permitted to build its monopole.²After setting forth the heavy burden necessary for a variance, the Hearing Board simply stated that Omnipoint had failed to meet its burden in that "the physical characteristics of the property could be used for a permitted purpose in a C-1 zoned district."(Id.¶ 6.)³

Omnipoint did not appeal this decision.Instead, on May 28, 1997, Omnipoint made a second zoning permit application.(Pl's Exs. (Dkt. Entry 18) Ex. C.)Omnipoint, now represented by counsel, contended that the Board had erred in applying the 2-acre size requirement because the proposed 1.49 acre lot was a nonconforming lot, i.e., it had been subdivided prior to the imposition of the two acre minimum.Omnipoint argued that the 2-acre restriction was not applicable to the nonconforming lot.⁴In addition to the argument that its proposed monopole was a permitted use in a C-1 district, Omnipoint also argued that, as a nonconforming lot, no height requirement could be imposed.(Id.)⁵Omnipoint's application was again denied.(Def's SMF (Dkt. Entry 17)¶ 16.)

Omnipoint appealed this determination to the Zoning Hearing Board, repeating its arguments that (1) its proposed monopole was a permitted use in a C-1 district; (2) no height restriction could be imposed; and (3) no acreage restriction could be applied to a nonconforming lot.On August 8, 1997, a hearing was held before the Zoning Hearing Board.(Def's Exs. (Dkt. Entry 18) Ex. F.)On September 16, 1997, the Zoning Hearing Board denied Omnipoint's appeal and application, finding:

The location of the proposed tower immediately adjacent to a major highway through the Township and surrounded by a residential development, Penn Forest Streams, leaves questions as to the safety of users of the highway and residents in the Development of Penn Forest Streams.The severity of the winters in the Pocono area are notorious, both in the quantity of snow and the intensity of winds and ice.

Section 4.300 of the Penn Forest Township Zoning Ordinance provides:

USE CLASSES IN ZONING DISTRICTS

Fourteen "Use Classes" are hereby established as shown in Schedule I.The specific uses included in each Use Class are outlined below and none of these uses shall be permitted in any district if they are to be operated in such a manner as to create any dangerous, injurious, noxious, or otherwise objectionable fire, explosive, radioactivity, or other hazard; noise or vibration, smoke, dust, dirt, or other forms of air pollution, electrical glare or other disturbance, as identified in Article V, which will adversely affect the surrounding area or premises.

Even if the erection of the tower is under the strict intent of the Ordinance permissible, it creates a danger and a hazard and would adversely affect the surrounding area.

The adjoining property owners, residents of Penn Forest Streams, objected to the location of the tower and stated their reasons and concerns.

The Telecommunications Act is not being violated by this decision.The decision is primarily based on safety of towers and their danger to the surrounding areas.The contention that the Township Zoning Hearing Board discriminated against it, because the Zoning Hearing Board permitted a similar tower to be erected in a C-1 district in the Township is unfounded.The Act prohibits unreasonable discrimination, and was intended to encourage free competition by preventing a municipality from favoring certain providers.This is not the case.The very location of the Cellular One tower is in a rural sparsely populated area is the sole reason for the granting of Cellular One's application.

(Def's Exs. (Dkt. Entry 18) Ex. D, at 4-5(emphasis added).)

The Board did not dispute Omnipoint's contention that its proposed monopole was a permitted use in a C-1 district and that a nonconforming lot was not subject to the acreage and height limitations.Instead, it rested its determination upon safety concerns.Omnipoint challenges this determination as not being supported by substantial evidence; as unreasonably discriminating against it in view of the Board's decision to allow Pennsylvania Cellular Telephone Corp. to erect a tower in a C-1 district; and as having the effect of denying personal wireless services.

II.DISCUSSION

A. Omnipoint's Motion for Summary Judgment on the Telecommunications Act Claim

Essentially, the Telecommunications Act of 1996 authorizes a federal court to hear appeals from zoning board decisions.The record for review of the zoning ruling is compiled by the zoning board.It is therefore appropriate to adjudicate such an appeal on a summary judgment motion, with the administrative record providing the undisputed factual basis for the federal court's decision.This is particularly the case where, as here, there is a contention that the zoning board's decision is not supported by substantial evidence.Such a question generally must be decided on the basis of the information presented to the zoning board.In this case, Penn Forest has not contested the accuracy of the information presented in support of Omnipoint's motion.Accordingly, adjudication of all Telecommunications Act issues on Omnipoint's summary judgment motion is proper.

The Telecommunications Act of 1996 was designed to promote competition in the personal telecommunications industry by limiting the ability of local authorities to regulate and/or control the expansion of telecommunications technology.SeeGearon & Co. v. Fulton County,5 F.Supp.2d 1351, 1353(N.D.Ga.1998);Cellco Partnership v. Town Plan & Zoning Comm'n,3 F.Supp.2d 178, 181(D.Conn.1998)("Congress...