Cellco P'ship v. White Deer Twp. Zoning Hearing Bd.

609 F.Supp.3d 331

CELLCO PARTNERSHIP d/b/a Verizon Wireless, Plaintiff

v.The WHITE DEER TOWNSHIP ZONING HEARING BOARD, Defendant

CIVIL ACTION NO. 4:20-CV-2438

United States District Court, M.D. Pennsylvania.

Signed June 29, 2022

Kevin Martin Walsh, Jr., Attorney-at-Law, Kingston, PA, Richard M. Williams, Hourigan, Kluger and Quinn, P.C., Kingston, PA, for Plaintiff.

Susan J. Smith, Law Office of Susan J. Smith, Camp Hill, PA, for Defendant.

MEMORANDUM

Christopher C. Conner, United States District Judge

Plaintiff Cellco Partnership doing business as Verizon Wireless ("Verizon") brings this action against defendant the White Deer Township Zoning Hearing Board ("Zoning Board") under the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(v). Verizon and Zoning Board both move for summary judgment pursuant to Federal Rule of Civil Procedure 56.

I. Factual Background & Procedural History ¹

Verizon is a cell phone service provider licensed by the Federal Communications Commission ("FCC"). (See Doc. 25-1 ¶¶ 2-4). Verizon has identified a four-mile area along Interstate 80 ("I-80") in the northern portion of Union County, Pennsylvania, where its wireless service is lacking. (See Doc. 25-20 at 3-4). Within the four-mile area, Verizon subscribers are likely to suffer from dropped calls, garbled audio, a lack of data connectivity, and—in case of an emergency—difficulty contacting 911. (See Doc. 25-20 at 1; Doc. 25-27, Zoning Hearing Bd. Tr. 97:8-98:23 ("ZHB Tr.")). Verizon seeks to construct a cell phone tower in the northwestern corner of White Deer Township to alleviate this service gap. (See Doc. 25-1 at 6; Doc. 25-20 at 3-4; see also Doc. 25-5).

The northwestern corner of White Deer Township along I-80 is a sparsely populated area where the vast majority of land is controlled by the Pennsylvania Department of Conservation and Natural Resources ("DCNR"). (See Doc. 25-1 ¶¶ 26-27, 33; Doc. 30-1 ¶ 26; see also ZHB Tr. 58:21-23). DCNR has a longstanding moratorium on leasing land for construction of cell phone towers. (See Doc. 25-1 ¶¶ 28-29; Docs. 25-11, 25-12; see also ZHB Tr. 58:17-60:10, 65:14-21, 76:11-82:4, 88:7-91:1). Consequently, the number of available locations for building a tower capable of alleviating the gap, at least on private land, are very limited. (See ZHB Tr. 58:17-23, 81:1-11). After conducting an examination of the area, Verizon determined there is precisely one suitable location—a small parcel along White Deer Pike owned by Willard E. Simpler, III, and Nancy S. Messimer.² (See Doc. 25-1 ¶¶ 28-29; ZHB Tr. 56:12-83:2, 88:7-91:1; Doc. 25-20 at 5).

Verizon subsequently negotiated a lease agreement with Simpler and Messimer. (See Doc. 25-1 ¶ 7). The lease agreement grants Verizon the right to build a tower on a 65’ by 40’ (0.0597 acre) subsection of the parcel. (See id. ) Verizon seeks to use the subsection to construct a 195-foot monopole cell phone tower capped by a four-foot lightning rod. (See Doc. 25-1 ¶ 9; Doc. 29-2 ¶ 15).

White Deer Township has enacted a zoning ordinance in accordance with Pennsylvania's municipal planning code. (See Doc. 25-1 ¶ 8; Doc. 29-2 ¶¶ 3, 8, 10-14). The subject parcel is zoned "Woodland," one of several zoning districts in White Deer Township. (See Doc. 25-1 ¶ 24). Cell phone towers are permissible structures within Woodland districts provided the tower meets certain requirements. (See id. ¶ 25). Most relevant to the controversy sub judice , the ordinance sets a minimum lot size of one acre and a minimum setback requirement of the tower's height plus ten percent. (See Doc. 25-28 at 4).

Verizon applied to Zoning Board on August 18, 2020, seeking variances necessary to allow construction of the tower on the leased portion of the parcel. (See Doc. 29-2 ¶ 17; Doc. 32 ¶ 17). Zoning Board held a hearing on Verizon's application on October 14, 2020. (See Doc. 25-1 ¶ 11). In support of the application, Verizon provided copious documentation establishing the tower's necessity and compliance with various regulatory and permitting criteria. (See id. ¶ 12). Verizon also presented testimony from four witnesses, including Andrew Petersohn, a radio frequency design expert, and Matthew Burtner, a siting consultant. (See id. ¶ 13; see also Doc. 25-20 at 10). Additionally, Verizon asserted that to deny the requested variances would constitute a violation of the Telecommunications Act of 1996. (See Doc. 25-1 ¶ 10).

Zoning Board denied Verizon's application orally at the conclusion of the hearing. (See id. ¶ 15). Zoning Board then issued a written decision articulating its findings of fact, conclusions of law, and rationale for denying the variances. (See Doc. 25-28). The written opinion describes Verizon as having presented a large volume of "factual information" showing "compliance with virtually all criteria required for permitting the proposed use." (See id. at 4). It also acknowledges Verizon had shown ample evidence for finding the existence of a significant gap in service. (See id. ) Nevertheless, Zoning Board found that Verizon had not met the statutory requirements for granting a variance under the Commonwealth's Municipal Planning Code, namely, that Verizon had not shown that compliance with the lot-size and setback minimums prevented "any possibility of development in strict conformity to the Ordinance." (See id. at 4-9). The opinion also expresses concern over the danger posed to public safety should the tower suffer a structural failure. (See id. at 5-9).

Following denial of the variance application, Verizon filed the pending lawsuit alleging Zoning Board's denial violates the Telecommunications Act and requesting the court reverse the denial. The parties have filed cross-motions for summary judgment on all counts of Verizon's complaint. The motions are fully briefed and ready for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of proof tasks the nonmoving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court is to view the evidence "in the light most favorable to the non[ ]moving party and draw all reasonable inferences in that party's favor." Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the nonmoving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only if this threshold is met may the cause of action proceed. See Pappas, 331 F. Supp. 2d at 315.

Courts may resolve cross-motions for summary judgment concurrently. See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008) ; see also Johnson v. FedEx, 996 F. Supp. 2d 302, 312 (M.D. Pa. 2014) ; 10A CHARLES ALAN WRIGHT ET AL. , FEDERAL PRACTICE AND PROCEDURE § 2720 (3d ed. 2015). When doing so, the court is bound to view the evidence in the light most favorable to the nonmoving party with respect to each motion. See FED. R. CIV. P. 56 ; Lawrence, 527 F.3d at 310 (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968) ).

III. Discussion

Congress enacted the Telecommunications Act to facilitate expansion of cell phone service across the United States and encourage competition between cell phone service providers. See Verizon Commc'ns, Inc. v. F.C.C., 535 U.S. 467, 491-92, 122 S.Ct. 1646, 152 L.Ed.2d 701 (2002) ; APT Pittsburgh Ltd. P'ship v. Penn Township Butler County, 196 F.3d 469, 473 (3d Cir. 1999) ; Ogden Fire Co. No. 1 v. Upper Chichester Township, 504 F.3d 370, 377-78 (3d Cir. 2007). To achieve this purpose, the Act, inter alia , places certain limitations on the traditional power of state and local authorities to regulate the placement of "personal wireless service facilities," i.e. , cell phone towers. See APT Pittsburgh, 196 F.3d at 473, 476-78 ; see also 47 U.S.C. § 332(c)(7). Specifically, the Act forbids state and local governments from regulating "the placement, construction, and modification of personal wireless service facilities" so as to "prohibit or have the effect of prohibiting the provision of personal wireless services." See 47 U.S.C. § 332(c)(7)(B)(i)(II). The Act also requires that any decision denying a request to "place, construct, or modify personal wireless service facilities" be in writing and "supported by substantial evidence contained in a written record." See id. § 332(c)(7)(B)(iii). The Act empowers any person adversely affected by action (or inaction) inconsistent with these limitations to bring suit in any court of competent jurisdiction. See id. § 332(c)(7)(B)(v). We review whether the state or local regulation violates the Act de novo. See Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Paramus N.J., 606 F. App'x 669, 671 (3d Cir. 2015) (nonprecedential) (citing APT Pittsburgh, 196 F.3d at 475 ).

Verizon argues that Zoning Board's denial violates the Telecommunications Act because the denial of the requested variances has the effect of prohibiting the provision of personal wireless services in the four-mile area along the I-80 corridor.³ (See Doc. 25-2 at 4-24). The standard for an "effect-of-prohibiting claim" is currently unsettled in our circuit. Our court of appeals previously held that to succeed on an effect-of-prohibiting claim, Verizon must show its proposed tower (1) fills a "significant gap" in service and (2) does so in a manner that is "least intrusive" on the values Zoning Board's denial sought to...