Horvath Towers Iii, LLC v. Zoning Hearing Bd. of Montoursville Borough

HORVATH TOWERS III, LLC, Plaintiff, v. ZONING HEARING BOARD OF MONTOURSVILLE BOROUGH, Defendant.

No. 4:16-CV-00421

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

October 18, 2016

(Judge Brann)

MEMORANDUM

Before the Court for disposition is Defendant Zoning Hearing Board of Montoursville Borough's ("Defendant") Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ For the following reasons, Defendant's Motion to Dismiss will be granted in part and denied in part.

I. BACKGROUND²

Plaintiff Horvath Towers III, LLC ("Plaintiff") is a Delaware limited liability corporation which specializes in the ownership, operation, construction, and maintenance of wireless communication towers.³ Specifically, Plaintiff regularly leases real estate on which it constructs towers, and thereafter subletstower usage to FCC-licensed personal wireless service providers such as Limitless Wireless and Verizon Wireless.⁴ Construction of these wireless towers is necessary to house antennae and related equipment essential to the seamless provision of wireless telephone services and high-speed data internet services.⁵ The antennae and related equipment located within a single wireless tower constitute a "cell site," with the surrounding area of service provided known as a "cell."⁶ Cells, in turn, must continuously overlap in a fashion approximating a honeycomb to provide dependable service.⁷ Any mobile telephone call must occur within two miles of a cell site to guarantee a reliable connection and avoid the frustration of interrupted service.⁸

The events giving rise to this Complaint began on September 20, 2013 with the consummation of a lease agreement between Plaintiff and the Willing Hand Hose Company No. #1, Inc.⁹ This lease permitted Plaintiff to erect a 145-foot stealth monopole tower at Willing Hand Hose Company's 821 Broad Street, Montoursville, Pennsylvania property.¹⁰ Within the proposed tower at various locations up and down its expanse, numerous antennae were to be concealed to ensure wireless communications services while preserving the tower's flag pole-like disguise.¹¹ This cell tower, and its related equipment, would occupy a total area within the property of 48-feet by 72.92-feet.¹² The governing Lease agreement is effective for an initial ten-year period, with three options to renew for five years, succeeded by one additional four-year option to renew. Following the expiration of a possible 29 year term, full possession of the area would return to Willing Hand Hose Company No. #1, Inc., and the cell tower would be removed.¹³

Construction of this cell tower in accord with the lease agreement, however, would be in contravention of the Borough of Montoursville's zoning ordinances as enforced by Defendant Zoning Hearing Board. Specifically, within the zoning district in which the proposed cell tower was to be constructed—Broad Street Commercial Zoning District (BSC Zoning District), Section 10.2.2.1 of the Montoursville Borough Zoning Ordinance authorizes communication towers by "Conditional Use" when operated for "Government Use only."¹⁴ "Non-government Use Only" communication towers, such as the proposed cell tower here, are restricted to two of Montoursville's ten zoning districts—the Recreation (R) District and the Industrial (I) District.¹⁵

Because of the restriction this ordinance placed on the construction of the cell tower, Plaintiff, on March 13, 2015, filed an application both challenging thevalidity of the Section 10.2.2.1 Ordinance, and requesting dimensional variances from the ordinance which would permit the construction of the cell tower.¹⁶ Plaintiff challenged the ordinance on grounds that (1) logistical and additional zoning restrictions on the placement of communication towers in the Recreation (R) District and Industrial (I) District create a de facto prohibition of a "non-Government Use Only" tower, and (2) the restriction set forth in Section 10.2.2.1 unconstitutionally confines communication towers to those that are for "Government Use Only."¹⁷

Defendant subsequently held hearings on June 9, 2015, July 22, 2015, and November 24, 2015, and allowed for the introduction of evidence pertaining to these challenges.¹⁸ On February 9, 2016, Defendant denied Plaintiff's application in its entirety, thus preventing the construction of the proposed cell tower.¹⁹

On March 9, 2016, Plaintiff filed a complaint against Defendant Zoning Hearing Board of Montoursville Borough.²⁰ Plaintiff's Complaint asserted the following three claims against Defendant: (1) a violation of Section 704 of the Telecommunications Act of 1996 ("TCA") for lack of "substantial evidence" supporting Defendant's decision; (2) a violation of Section 704's prohibition against "unreasonable discrimination" among providers of functionally equivalentservices; and (3) an appeal under state law concerning Defendant's zoning decision.²¹ On May 3, 2016, Defendant filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) seeking the dismissal of Plaintiff's Complaint in its entirety.²² This Motion has since been fully briefed, and the issue is now ripe for this Court's disposition.

II. DISCUSSION

A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a motion to dismiss for "failure to state a claim upon which relief can be granted." Such a motion "tests the legal sufficiency of a pleading" and "streamlines litigation by dispensing with needless discovery and factfinding."²³ "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."²⁴ This is true of any claim, "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one."²⁵

Beginning in 2007, the Supreme Court of the United States initiated what some scholars have termed the Roberts Court's "civil procedure revival" by significantly tightening the standard that district courts must apply to 12(b)(6)motions.²⁶ In two landmark decisions, Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, the Roberts Court "changed . . . the pleading landscape" by "signal[ing] to lower-court judges that the stricter approach some had been taking was appropriate under the Federal Rules."²⁷ More specifically, the Court in these two decisions "retired" the lenient "no-set-of-facts test" set forth in Conley v. Gibson and replaced it with a more exacting "plausibility" standard.²⁸

Accordingly, after Twombly and Iqbal, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"²⁹ "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."³⁰ "Although the plausibility standard does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully."³¹ Moreover, "[a]sking for plausible grounds . . . calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of[wrongdoing]."³²

The plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."³³ No matter the context, however, "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'"³⁴

When disposing of a motion to dismiss, a court must "accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to [the plaintiff]."³⁵ However, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions."³⁶ "After Iqbal, it is clear that conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss."³⁷ "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."³⁸

As a matter of procedure, the United States Court of Appeals for the Third Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, acourt reviewing the sufficiency of a complaint must take three steps. First, it must tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.³⁹

B. Analysis

Based on a review of the factual allegations of the Complaint read in conformity with the Twombly-Iqbal standard of pleading, the Court determines that Plaintiff has alleged facts sufficient to make "plausible on its face" its claim under the "substantial evidence" provision of the TCA and its state law-based zoning appeal. To that extent, then, the Motion to Dismiss is denied.

Plaintiff, however, has failed to adduce facts which, when read in the light most favorable and with an assumption of veracity, make plausible its claim under the "unreasonable discrimination" provision of the TCA. This claim will, therefore, be dismissed under Federal Rule of Civil Procedure 12(b)(6).

The Telecommunications Act of 1996 created "a pro-competitive, de-regulatory national policy framework designed to rapidly accelerate private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets tocompetition."⁴⁰ The TCA accomplished this end by lessening the traditional deference paid to state and local authorities in favor of advancing the development of telecommunications facilities.⁴¹...