WILLIAMSPORT – A municipal zoning board in North Central Pennsylvania counters it did not violate federal law in denying Verizon the opportunity to build a cell phone communications tower, rather that the company did not meet the proper burden of proof for obtaining a necessary variance for the construction.
Cellco Partnership (doing business as “Verizon Wireless”) of Basking Ridge, N.J. first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Dec. 28 versus the White Deer Township Zoning Hearing Board, of New Columbia.
Verizon asserted it was given authorization by the Federal Communications Commission to operate a wireless communications system in Union Township and that in the White Deer Township area, there is currently a lack of strong signal strength and cellular service.
It said that its engineers have determined that a 195 foot-tall monopole would be necessary to improve signal strength in the area.
“Accordingly, in order to better serve the residents of White Deer Township and the general public, the plaintiff proposed to construct a new wireless communications facility on a 65’ x 40’ parcel of land owned by Willard E. Simpler III and Nancy S. Messimer, located at 9880 White Deer Pike, New Columbia, Pennsylvania 17856,” the suit stated.
“On Aug. 18, 2020, and in accordance with the procedures prescribed by the Pennsylvania Municipalities Planning Code and the Zoning Ordinance of White Deer Township, Union County, the plaintiff submitted an application to the defendant for dimensional variances in connection with its request to construct a communications facility on the premises.”
Verizon added it presented substantial testimony and evidence at a public hearing in support of its request on Oct. 14, 2020. At the conclusion of the hearing, the Board orally denied the plaintiff’s application.
In its decision, the Board cited a 2000 moratorium issued by Pennsylvania’s Department of Conservation of Natural Resources which prohibits construction of cell phone towers on state forest land. Such land surrounds the privately-owned lot upon which Verizon desired to build its tower.
“Thereafter, on Nov. 27, 2020, the Board issued its written decision memorializing its denial of the application. The denial of the application by the Board is in violation of the plaintiff’s rights under the Telecommunications Act of 1996,” per the suit.
“The Board’s denial of the application acts as a prohibition of wireless service in violation of the Telecommunications Act of 1996. In addition, the Board’s findings and conclusions are not supported by substantial evidence and otherwise are in error as a matter of law. As a result of the defendant’s actions, the plaintiff has been damaged irreparably and does not have an adequate remedy at law.”
UPDATE
The White Deer Township Zoning Hearing Board and its counsel filed an answer to the suit on March 1, denying its veracity and conclusions and countering that Verizon did not meet the lawful burden of proof in its submitted testimony at the hearing.
“[These allegations are] a conclusion of law to which no answer is required. To the extent [the complaint] is understood to contain factual content, such statements are denied. Strict proof thereof is demanded,” the answer stated.
“It is admitted that plaintiff submitted testimony and exhibits at the hearing conducted by the Zoning Hearing Board. It is denied that the offered evidence was ‘substantial.’ Strict proof thereof is demanded. By way of further answer, the evidence offered was insufficient to satisfy the findings to be made by the Zoning Hearing Board as required by Section 910.2 of the Pennsylvania Municipalities Planning Code.”
For counts of violating the Telecommunications Act of 1996, the plaintiff is seeking a review of the record of the application and the hearing of the Board on Oct. 14, a finding that the Board was in violation of the Telecommunications Act of 1996 by concluding that the decision is not supported by substantial evidence, reversing the decision of the Board by granting the application to construct a communications facility on the property, costs, expenses and legal fees, plus other relief as the Court, in its sound discretion, deems necessary and appropriate.
The plaintiff is represented by Kevin M. Walsh Jr. and Richard M. Williams of Hourigan Kluger & Quinn, in Kingston.
The defendant is represented by Susan J. Smith of the Law Office of Susan J. Smith, in Camp Hill.
U.S. District Court for the Middle District of Pennsylvania case 4:20-cv-02438
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com