Global Tower, LLC v. Hamilton Twp.

897 F.Supp.2d 237

GLOBAL TOWER, LLC, Plaintiff,

v.HAMILTON TOWNSHIP, and Zoning Hearing Board of Hamilton Township, Defendants.

Civil Action No. 3:CV–10–1705.

United States District Court, M.D. Pennsylvania.

Sept. 14, 2012.

Elizabeth U. Witmer, Saul Ewing LLP, Wayne, PA, George Asimos, Saul Ewing, LLP, Harrisburg, PA, Jennifer L. Beidel, Saul Ewing LLP, Philadelphia, PA, for Plaintiff.

Gerard J. Geiger, Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri, Robert J. Kidwell, Stroudsburg, PA, for Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is Magistrate Judge Methvin's Report and Recommendation (the “R & R”) (Doc. 37) recommending Plaintiff Global Tower, LLC's (“Global”) Motion for Summary Judgment (Doc. 22) be granted and Defendants Hamilton Township and the Zoning Hearing Board of Hamilton Township's (collectively “Hamilton”) Motion for Summary Judgment (Doc. 19) be denied. Global alleges that the Zoning Hearing Board (the “Board”) unlawfully denied its Application to construct a cell tower on leased property in Hamilton Township, Pennsylvania in violation of the Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 332(c)(7)(B). Because the Board's denial of Global's Application was not supported by substantial evidence and the Board unreasonably discriminated against a provider of functionally equivalent services, Global's motion for summary judgment will be granted and Hamilton's motion for summary judgment will be denied.

I. Background

Global is a limited liability company formed under the laws of Delaware. (Docs. 20; 30, ¶ 1.) Global leases real estate on which it constructs radio towers, which it then subleases to FCC licensed personal wireless service providers. ( Id. at ¶ 2) Hamilton Township is a political subdivision located in Monroe County Pennsylvania, and the Zoning Hearing Board of Hamilton Township is an entity created under the Pennsylvania Municipalities Planning Code (“MPC”). ( Id. at ¶¶ 3–4.)

On December 16, 2008, Global, through an affiliate, entered into a lease agreement (the “Lease”) with Lloyd and Shirley Singer, as trustees of the Singer Trust. (Docs. 23; 32, ¶ 4.) The Singers own a thirty-acre tract in Hamilton Township, which is in a partially-developed rural area (the “Singer Tract”). ( Id. at ¶ 5.) The Singer Tract includes a structure which has been described as a barn, and has a gravel or dirt drive. ( Id. at ¶ 6.) The purpose of the Lease was to allow Global to erect a radio tower and to install related equipment on the ground (collectively the “Tower”) inside a 100 by 100 foot leased area. ( Id. at ¶ 7.) The initial lease term is for five years, with five successive five-year renewal terms, for a total potential lease term of thirty years. ( Id. at ¶ 8.)

On February 17, 2009, Global, acting through its agent, Fortune Wireless, Inc., filed an application with the Zoning Board requesting “special use” approval to construct the Tower. ( Id. at ¶ 11.) On February 2, 2010, Global filed an amended application (the “Application”) reflecting a proposed reduction of the Tower's height from 300 feet to 250 feet. ( Id. at ¶ 12.) The Tower is to be a three-sided lattice-type construction with clusters of antennas mounted in various locations on the tower, with a seven foot lightning rod on top. ( Id. at ¶ 13.) The Tower is to be constructed in accordance with national and local codes, subject to review by the Township code enforcement officer. ( Id. at ¶ 14.) The Tower is to be unmanned and does not require water or sewer service. ( Id. at ¶ 15.) The two utilities required by the Tower, a telephone line and an electrical line, would be run underground. ( Id. at ¶ 16.) Access to the Tower would be restricted to the existing drive, with slight improvements, and the landowner testified that under the Lease, Global would provide maintenance to the Tower and surrounding areas. ( Id. at ¶¶ 17, 19.)

The Singer Tract is in a C Zoning District which, pursuant to section 402.2 of the Hamilton Township Zoning Ordinance (the “Ordinance”), permits radio and television transmission or receiving towers as a special use. ( Id. at ¶ 22.) Other permitted uses in C districts include, inter alia, multi-family residential buildings, commercial and limited commercial uses, light industrial uses, and accessory uses and essential services. ( Id. at ¶ 23.) Section 402.2 also requires that special uses refrain from causing injury to other property or jeopardize the public health, safety, welfare, or convenience. (Docs. 20; 30, ¶ 9.)

Twenty hearings on Global's Application were held between April 7, 2009 and June 10, 2010 (collectively “the Hearing”). (Docs. 23; 32, ¶ 27.) The Board also conducted a view of the Singer Tract on March 17, 2010, during which Global performed a balloon float to a height of approximately 250 feet. ( Id. at ¶ 28.) At the Hearing, Global offered the testimony of Frank Chlebnikow, an expert on land use, zoning, and community planning; John Doyle, a real estate appraiser; and Michael Bohlinger, a civil structural engineer. ( Id. at ¶ 29.) Objectors to the Tower offered the testimony of Thomas McKeown, a real estate appraiser, and R. Douglas Olmstead, Jr., P.E., a civil engineer. ( Id. at ¶ 30.) At the conclusion of the Hearing, Global and the Singers agreed to the imposition of a number of restrictions on the Application in an attempt to alleviate concerns raised during the Hearing. ( Id. at ¶ 31.) Nevertheless, the Board denied Global's Application for special use by a written decision on July 14, 2010. ( Id. at ¶ 32.)

Prior to ruling on Global's Application, the Board had approved the applications of two other radio towers, Sprint Spectrum and PA Cellular. ( Id. at ¶ 33.) The Sprint tower is in a C zoning district, while the PA Cellular tower is located in an A zoning district. ( Id.)

The Board approved the Sprint tower on February 1, 2000. ( Id. at ¶ 37.) Like the Global Tower, the Sprint tower is a 250–foot lattice tower. ( Id. at ¶ 39.) The Sprint tower is located on a site that is approximately 784 feet in elevation, on a 50 by 50 foot leased area of a 10.81 acre tract. ( Id. at ¶¶ 43–44.) The Global Tower would be on a site approximately 626–628 feet in elevation, on a 100 by 100 foot leased tract on a thirty-acre parcel. ( Id.) Characteristics common to both towers include: three-legged lattice design; equipmentcabinets; seven foot high fence topped with barbed wire; lighted; unmanned; providing for future use by other tower companies; and access by private drive. ( Id. at ¶ 45.)

Sprint's tower, like Global's Tower, is visible above the tree line in various areas of the Township. ( Id. at ¶ 46.) No landscaping or screening was proposed for the Sprint tower because no landscaping can screen a 250–foot tower. ( Id. at ¶ 47.) Sprint's lease term was for five years with four additional five-year renewal terms. ( Id. at ¶ 48.) Due to the likelihood that the Sprint tower would present an attractive nuisance to those wishing to climb the structure, the Board found that “special circumstances support[ed] the Applicant's request to construct a seven-foot high fence topped with barbed wire.” ( Id. at ¶ 48.) No evidence was presented that Sprint's tower would cause substantial injury to the value of other property or jeopardize the public health, safety, welfare, or convenience. ( Id. at ¶ 49.)

The PA Cellular tower was approved by the Board on November 6, 1996. ( Id. at ¶ 52.) The PA Cellular Tower is a lattice structure approximately 280 feet in height located in the center of a 150 by 150 foot leased tract of a thirty-six acre parcel. ( Id.) The PA Cellular tower is located on a site that is approximately 700 feet in elevation. ( Id. at ¶ 54.) Like the Sprint tower, the Board found that no landscaping or screening would buffer or screen a 280–foot tall tower. ( Id. at ¶ 55.) Hamilton notes, however, that the existing trees proposed as screening for the Global Tower are outside of the leased area on the Singer Tract. ( Id.) PA Cellular sought, and was granted, a variance to erect an eight-foot fence topped with barbed wire to prevent trespassers from climbing the tower. ( Id. at ¶ 56.) As with the Global proposal and the Sprint tower, the PA Cellular Tower: is a three-legged lattice design; has equipment cabinets; is lighted and unmanned; is accessed by a private drive; and is gated. ( Id. at ¶ 57.) Pursuant to the uncontroverted testimony of the applicant, the Board concluded that the PA Cellular tower would not substantially impact property values nor negatively affect public health, safety, welfare, or convenience. ( Id. at ¶ 58.)

In denying Global's Application, consistent with determinations regarding the Sprint and PA Cellular towers, the Board concluded that Global's leased area constituted a new “lot.” ( Id. at ¶ 62.) The Ordinance provides that “[i]n any district, more than one structure containing a permitted or permissible principal use may be erected on a single lot, provided that yard, lot area and other requirements of this Ordinance shall be met for each structure as thought it were on an individual lot.” ( Id. at ¶ 66.) As with the determinations made in the Sprint and PA Cellular cases, the Board concluded that Global's Tower was exempt from the height requirements of the Ordinance. ( Id. at ¶ 67.)

The Board concluded that the leased-area consisted a “lot,” which required Global to comply with section 501.2 of the Ordinance. (Doc. 32, ¶ 71.) Section 501.2 provides that “no open or mesh fence along the sides or front edge of any front yard shall be greater than six feet in height.” ( Id.) And, because Global did not apply for a variance from this section, Global's submission failed to comply with the Ordinance. ( Id.) Global contends, however, that the proposed fence “is not along the sides of the lot or the front edge of the front yard, it's some 400 feet from the road.” (Doc. 23, ¶ 71.) Additionally, the Board...