Suburban Philly zoning board named in lawsuit over cell tower variance denial

By Jon Campisi | Sep 27, 2011

A company that is seeking to erect a wireless telecommunications tower in Bucks County is suing a local zoning board for denying the plaintiff’s application for a variance.

Lower Gwynedd attorney Richard J. Lemanowicz filed the civil complaint Sept. 22 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Liberty Towers, a limited liability corporation headquartered in Rockville, Md.

The defendant in the suit is the Doylestown Township Zoning Hearing Board.

According to the complaint, Liberty Towers filed an application with the board late last year seeking a zoning variance to construct a cell phone tower that would provide enhanced wireless coverage for telecommunications carriers T-Mobile, AT&T and MetroPCS.

The suit states that the tower was needed because cell phone coverage for those carriers was lacking in this particular area.

Because the tower would be closer to an occupied structure than allowed by local ordinance, a zoning variance was needed for construction to move forward.

Public hearings were conducted on the matter in December 2010, as well as in May and June of this year. During the hearings, the plaintiff offered expert testimony on a number of factors, including that the plaintiff met its burden of proof for granting the requested relief, that the cell carriers in question have significant gaps of coverage in the area in question and that the construction of the wireless tower would be the “least intrusive means” of filling the gap in service, thereby offering adequate service to Doylestown Township, the lawsuit states.

In August, the zoning hearing board issued a written ruling denying the plaintiff’s requested variance, according to the complaint.

The lawsuit accuses the defendant of violating the federal Telecommunications Act, which governs wireless communications facilities and service.

In the suit, the plaintiff asserts that the federal act requires state and local governments who rule against a wireless tower to do so using “substantial evidence contained in a written record.”

In this case, the plaintiff claims that the board’s actions were “arbitrary, capricious [and] an abuse of discretion,” contrary to the requirements of the act.

Through the lawsuit, Liberty Towers seeks to have the zoning board’s decision reversed and the proper approvals issued to the plaintiff so it could move forward with constructing and operating the tower.

No jury trial is being sought.

The federal case number is 2:11-cv-06001-NS.

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