Depolo v. Bd. of Supervisors of Tredyffrin Twp., 79 C.D. 2017.

168 A.3d 387

Jeffrey J. DEPOLO, Appellant

v.BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP; and Michael C. Heaberg, Kristen K. Mayock, Paul Olson, Evelyn Richter, John P. DiBuonaventuro, Mark Freed, and Murph Wysocki, in their capacities as members of the Board of Supervisors of Tredyffrin Township and Tredyffin Township Zoning Hearing Board of Appeals; and Arnold Borish, Daniel McLaughlin and Neill Kling, in their capacities as members of the Zoning Hearing Board of Appeals of Tredyffrin Township

No. 79 C.D. 2017.

Commonwealth Court of Pennsylvania.

Submitted on Briefs: July 7, 2017

Decided: August 2, 2017

Reargument Denied September 29, 2017

Robert B. Famiglio, Media, for appellant.

Maureen M. McBride, West Chester, for appellee Board of Supervisors of Tredyffrin Township.

John E.D. Larking, West Chester, for appellee Tredyffrin Township Zoning Hearing Board.

George V. and Suzanne Randolph, Mark and Kimberly Samuels, Paul and Patrick Adack, Aley Tohamey, Sally Selim, Ralph L. and Christine M. Hunter and Jonathan Hires, appellees, pro se.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY SENIOR JUDGE PELLEGRINI

Jeffrey J. DePolo (DePolo) appeals from an order of the Court of Common Pleas of Chester County (trial court) finding that he could not "transfer" his federal complaint to the trial court under Section 5103 of the Judicial Code, 42 Pa.C.S. § 5103, to act as an appeal from a zoning board decision. We affirm.

I.

DePolo, a federally licensed amateur radio enthusiast, owns property located at 1240 Horseshoe Trail, Tredyffrin Township (Township), Pennsylvania (property) consisting of 2.9 acres and zoned in the R–1/2 Residential District of the Township. On November 25, 2013, he filed an application with the Township to construct a 180–foot radio tower on his property.¹ That application was denied by a zoning officer who concluded that Section 208–18(G) of the Township's Zoning Ordinance (Ordinance) limited structures in the R–1/2 Residential District to 35 feet.² DePolo was informed that he would be permitted to construct a 65–foot tower, but he rejected that offer.

II.

On February 4, 2014, DePolo appealed the denial of his application to the Tredyffrin Township Zoning Hearing Board (ZHB) contending that the Ordinance's fixed and firm height restriction of 35 feet, as enacted and as applied, was contrary to state³ law and preempted by the Federal Communications Commission's (FCC) declaratory ruling known as PRB–1, Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952 (1985), adopted at 47 C.F.R. § 97.15(b).⁴ DePolo declined to reduce the height of the proposed tower.⁵

After public notice was provided and hearings were held, on October 23, 2014, the ZHB issued a decision denying DePolo's application for the 180–foot tower but granting him a permit for a 65–foot tower. The ZHB noted that there were three levels of regulation involved in the current appeal. The first level of regulation is contained in Section 208–18.0 of the Ordinance, limiting the height of structures to 35 feet in the R–1/2 Residential Zoning District. Section 208–113 of the Ordinance provides that "antennas and similar projections shall be included in calculating the height of a building...."

The second level of regulation is contained in Section 302 of the General Local Government Code, where the General Assembly provided that municipalities regulating antenna height "shall impose only the minimum regulations necessary to accomplish the legitimate purpose of the municipality." 53 Pa.C.S. § 302(a). Municipalities may impose necessary safety regulations but must accommodate amateur radio communications and may not restrict radio antenna height to less than 65 feet above ground level. Municipalities may also take action "to protect or preserve a historic, a historical or an architectural district that is established by the municipality or pursuant to Federal or State law." 53 Pa.C.S. § 302(c).

As to the third level, the FCC's declaratory ruling known as PRB–1, adopted at 47 C.F.R. § 97.15(b), announced a "limited preemption policy." 101 F.C.C.2d at 960. The ZHB interpreted this regulation to prohibit "local municipalities from precluding amateur radio communications," but observed that the FCC expressly declined to regulate the height of radio antenna towers. (Reproduced Record (R.R.) at 37a–38a.) It noted that PRB–1 directed municipalities to "accommodate reasonably" such communications without creating any rights for the amateur radio operators themselves.

Taking those regulations into consideration, the ZHB denied DePolo's request for the proposed 180–foot tower. The ZHB first found that the proposed tower was "not compatible" with the surrounding residential neighborhood because it "would greatly exceed the height of all residential buildings and accessory structures in the area" and "would create an adverse visual impact on the neighborhood." (R.R. at 36a.) The proposed tower's "height, mass, and latticework design" was "of a type universally associated with ... a factory area or industrialized complex" and "poses a safety hazard to neighboring properties because its fall radius extends up to 120 feet into neighboring properties." (Id. )

The ZHB also found that the R–1/2 Residential District in which DePolo lived was designed under Ordinance Section 208–16 "to minimize disruption to notable features such as the Exceptional Value Valley Creek Watershed, Valley Forge Mountain, and the natural, scenic and historic character of the Township." (R.R. at 40a.) Moreover, it "would be visible from a key viewpoint in Valley Forge National Historical Park," which is a "historic resource and an important aspect of the visitor experience." (R.R. at 36a, 37a.)⁶ It also noted that the United States Department of Interior, National Park Service and Valley Forge National Historical Park objected to the application because the tower, as proposed, would be visible from a key viewpoint in the Valley Forge National Historical Park.

The ZHB also found that the reasonable accommodation required under PRB–1 did not "require[ ] a municipality to allow an amateur operator to erect any antenna s/he desires." (R.R. at 41a.) The ZHB concluded that the Township made a reasonable accommodation contemplated by the FCC by allowing a 65–foot tower, which DePolo declined despite "ample evidence" it would permit him to engage in extensive radio communications. It found that DePolo is able to engage in amateur radio communications using an antenna with a height as low as 17 feet. A 65–foot tower with a seven megahertz antenna would allow him to reach Ireland, Portugal, most of Spain, parts of North Africa and parts of France with a 40% reliability threshold, a threshold that would only increase by 10% were the 180–foot tower permitted. A 65–foot tower with a 14 megahertz antenna would allow him to reach Belgium, Amsterdam, all of Spain and North Africa with a 40–50% reliability threshold, which would also only increase by 10% were the 180–foot tower permitted.

The ZHB also concluded that the Ordinance's limitation of the maximum height of structures in the R–1/2 Residential District to 35 feet was not invalid because DePolo had the opportunity to seek a variance, which he withdrew by stipulation. While it denied his application for the 180–foot tower, the ZHB did grant DePolo a permit for a 65–foot tower.

III.

Rather than appeal the ZHB's decision to the trial court, within 30 days of the ZHB decision, DePolo filed suit in federal district court (district court) contending that the 65–foot variance and the Ordinance's fixed and firm height restriction of 35 feet, as enacted and as applied, was contrary to state law and preempted by federal law. Following a motion to dismiss, on May 18, 2015, the district court found that it had jurisdiction under the decision Izzo v. Borough of River Edge , 843 F.2d 765 (3d Cir. 1988), but dismissed the matter pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. See DePolo v. Board of Supervisors of Tredyffrin Township , 105 F.Supp.3d 484 (E.D. Pa. 2015), appeal dismissed , 835 F.3d 381 (3d Cir. 2016).⁷

DePolo then filed an appeal with the United States Court of Appeals for the Third Circuit which, on August 30, 2016, issued a decision concluding that "[w]e have jurisdiction pursuant to 28 U.S.C. § 1291,"⁸ but dismissing the action because:

... DePolo's failure to appeal the ZHBA's [Zoning Hearing Board of Appeals] determination to state court rendered the decision final and that, given the unique procedural history of this case, we must afford the ZHBA's final judgment the same preclusive effect that it would have had in state court. It is therefore not reviewable in this suit.

* * *

We have explained that "in determining whether a litigant has been given a ‘full and fair’ opportunity to litigate a claim, we must take into account the possibility of appellate review" because a full and fair opportunity to litigate "includes the possibility of a chain of appellate review." The ZHBA is a state administrative agency acting in a quasijudicial capacity. It resolved this dispute by issuing a written determination containing final findings of fact and conclusions of law. While DePolo was aggrieved by the ZHBA's decision limiting the variance to 65–feet, he had adequate opportunity to litigate the matter beyond the ZHBA by appealing to the appropriate Court of Common Pleas within thirty days of the ZHBA's decision. Rather than do that, DePolo filed this suit in the District Court, and allowed the thirty-day appeal period under state law to expire. This was fatal to his ability to obtain federal review of his claim. DePolo actually withdrew his request for a variance before the ZHBA and then failed to challenge its factual findings or legal conclusions in the forum provided under state law. He is therefore now bound by the final

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