WILLIAMSPORT – Verizon has won its motion for summary judgment in a case in which it argued that a municipal zoning board in North Central Pennsylvania violated federal law in denying it the opportunity to build a cell phone tower, and that the denial prevented a sizable population area from obtaining its wireless telecommunications services.
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, 2020 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.”
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.”
Verizon filed for summary judgment on Sept. 6, arguing that the Board’s denial of its application violated the Telecommunications Act of 1996 by prohibiting wireless service.
Verizon added that while the U.S. Court of Appeals for the Third Circuit requires it to demonstrate that its facility “will fill an existing significant gap in the ability of remote users to access the national telephone network and that the way the provider proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve,” the Federal Communications Commission rejected this rationale – in favor of examining instead whether the denial “materially limits or inhibits the ability of any competitor or potential competitor to complete in a fair and balanced legal and regulatory environment.”
White Deer Township Zoning Hearing Board filed its own motion for summary judgment on Sept. 15, arguing that it made its decision to reject Verizon’s application based on “bona fide local zoning concerns.”
“White Deer Township Zoning Hearing Board, while functioning in its quasi-judicial capacity and within its authority expressly preserved by Section 332(c)(7) of the Telecommunications Act, made the findings required by the Pennsylvania Municipalities Planning Code for the grant of a variance based on bona fide local zoning concerns,” the Board’s motion read.
“These bona fide local zoning concerns (local land use policy implemented through regulation by zoning) are expressed as lot size and setback requirements for uses of property within the Woodland Zoning District where the property is located. The property is already improved with a dwelling use and related buildings and structures (the application contains no proposal to improve upon the limiting conditions, e.g., removal of buildings and structure, and the application, if granted, would compound the substandard condition of the property).”
UPDATE
U.S. District Court for the Middle District of Pennsylvania Christopher C. Conner granted the plaintiff’s motion for summary judgment and awarded the case to Verizon on June 29 – finding that Verizon met requirements for succeeding on an effect-of-prohibiting claim under the Telecommunications Act.
“At the zoning hearing, Verizon provided a report and testimony from Petersohn, a ‘radio frequency design engineer.’ In both his report and testimony, Petersohn describes the presence of a ‘four-mile stretch along I-80’ where Verizon subscribers are likely to suffer dropped calls, garbled audio, a lack of data connectivity, and difficulty contacting emergency services. Petersohn’s expert testimony speaks precisely to the connectivity issues necessary for showing the existence of a ‘significant gap’ in service,” Conner said.
“Zoning Board’s decision denying Verizon’s variance requests even acknowledges Verizon ‘adequately demonstrates there is a ‘gap’ in wireless communication services that the proposal is designed to alleviate.’ In response to Verizon’s motion, Zoning Board does not go so far as to admit the gap exists, but provides no evidence or reasoning challenging the accuracy of Verizon’s evidence. Accordingly, we have no difficulty finding Verizon, as a matter of law, has established the existence of a significant gap in its service along the I-80 corridor.”
Conner added that the provider only needs to establish that “a good faith effort has been made to identify and evaluate less intrusive alternatives” in terms of the values the denial sought to serve.
“At the zoning hearing, Matthew Burtner, Verizon’s siting expert, testified that Verizon considered virtually every other privately held property in the area around the service gap and explained, property by property, why Verizon rejected each as a viable location for a tower. Burtner specifically testified that all the other plausible locations for the tower on privately held land would require even greater variances from the zoning ordinance’s requirements than the White Deer Pike parcel,” Conner said.
“Zoning Board questioned in its written decision whether Verizon had truly shown no alternative existed to constructing the tower on the parcel because Verizon had not challenged the legality of DCNR’s moratorium, but it does not renew that argument before this Court. In fact, Zoning Board provides neither evidence nor argument suggesting another location or technological means to address the service gap. Nor does it attack the accuracy or credibility of Burtner’s testimony. We conclude without hesitation that Verizon made a good faith effort to find an alternative site and established, as a matter of law, that the 195-foot monopole is the least intrusive means of addressing the service gap along the I-80 corridor.”
Conner issued a judgment which declared that the defendant’s decision denying plaintiff’s variance application regarding the property located on White Deer Pike violated the Telecommunications Act of 1996, that the defendant’s same decision denying plaintiff’s variance application regarding the property located on White Deer Pike was reversed and the plaintiff’s variance application was granted.
The plaintiff was represented by Kevin M. Walsh Jr. and Richard M. Williams of Hourigan Kluger & Quinn, in Kingston.
The defendant was 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