OPINION BY
Senior Judge KELLEY.
The Borough of Baldwin (Borough) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) which reversed the decision of the Zoning Hearing Board of the Borough of Baldwin (Board), and granted site-specific relief to Robert Macioce (Landowner) and Pittsburgh Cellular Telephone Company d/b/a A.T. & T. Wireless Services (AT
&
T) to construct a communications facility in the Borough’s Planned Residential Zoning District (PRD). We reverse.
Landowner owns a 70-acre parcel of land in the Borough’s PRD Zoning District.
On March 28, 2000, Landowner and AT & T entered into a lease agreement under which AT & T leased a 100-foot by 100-foot portion of the parcel to construct and operate a wireless communications facility.
The proposed facility consists of a 120-foot monopole with nine panel antennas, a 12-foot by 28-foot shelter at the base, and an eight-foot chain link fence surrounding the facility.
On July 10, 2001, Landowner and AT
&
T filed a challenge to the validity of the Borough’s Zoning Ordinance with the Board pursuant to Section 168-59A of the Borough’s Zoning Ordinance
and Section 916.1(a) of the Pennsylvania Municipalities Planning Code (MPC).
Landowner and
AT & T alleged that the Zoning Ordinance resulted in a
de facto
exclusion of communications facilities, that it violated the provisions of the Federal Telecommunications Act of 1996 (Telecommunications Act)
and, as a result, Landowner and AT
&
T are entitled to site-specific relief permitting the construction of the proposed communication facility on the proposed site.
With respect to the former claim, Landowner and AT & T alleged that when all of the requirements of Section 168-46.1 of the Borough’s Zoning Ordinance were applied to all of the suitable undeveloped lots located in the Borough’s R^t, POPS, C-l and C-2 Zoning Districts, less than 1% of the land in the Borough could be used as a communications facility.
With respect to
the latter claim, Landowner and AT
&
T alleged that the Borough had violated Section 332(c)(7)(B)(i)(ll) of the Telecommunications Act
by “[p]rohibit[ing] or having the effect of prohibiting the provision of personal wireless services.” Hearings before the Board ensued.
On December 24, 2001, the Board issued a decision disposing of the validity challenge in which it made the following relevant findings of fact:
8. On February 17, 1997, the Borough adopted Ordinance No. 708 permitting the development of communications facilities and tower sites as conditional uses in certain districts and establishing standards and criteria for granting such conditional uses ...
9. Section 2 of Ordinance No. 708 permits communications facilities and tower sites as conditional uses in “residential districts,” “commercial districts” and “industrial districts” within the Borough.
10. Ordinance No. 708 does not permit communications facilities and tower sites in PRD and POPS zoning districts.
11. Section 4 of Ordinance No. 708 sets forth specific standards and criteria for the granting of conditional uses for communications facilities and tower sites ...
12. [Landowner and AT & T] have not offered any evidence that would tend to satisfy the enumerated standards and criteria for the grant of either a conditional use or a use or dimensional variance as set forth in the Borough Ordinance or the law set forth in the [MPC]. In any event the granting or denial of a conditional use is not within the jurisdiction of this [Board] because it is a matter that must be submitted to the Borough Planning Commission and thereafter to the Borough Council.
Board Decision at 2.
Based on the foregoing, the Board made the following relevant conclusions of law:
(C) The Borough Zoning Ordinance is presumed valid under the law and the challengers to the constitutionality of the zoning ordinance bear a heavy burden of proof and they must demonstrate that the Ordinance completely excludes their proposed legitimate uses. [Landowner and AT & T] have not sustained their burden of proof.
(D) The Borough Zoning Ordinance is not an exclusionary ordinance, but it does legally confine a type of activity, to wit, communications facilities and tower sites, to particular locations in the Borough. Therefore, there is not a total prohibition of such land use within the Borough.
(E) Ordinance No. 708 established identifiable criteria that the governing body will apply in evaluating an applicant’s proposed land use, and in this case, the Ordinance sets forth the standards and criteria that the Borough Planning Commission and Council must utilize in determining whether [Landowner and AT & T] are entitled to a conditional use of the proposed site for the construction and operation of a communications facility and tower site.
(F) The Borough Zoning Ordinance, as amended by Ordinance No. 708, is
constitutionally valid and enforceable. Since it is not constitutionally invalid, [Landowner and AT & T] are not entitled to site-specific relief. This Ordinance does not violate the [Telecommunications Act].
Id.
at 2-3. As a result, the Board denied the request of Landowner and AT & T to declare the Zoning Ordinance invalid and for site-specific relief.
Id.
at 3.
On January 22, 2002, Landowner and AT
&
T appealed the Board’s decision to the trial court. On February 20, 2002, the Borough filed a notice of intervention in the appeal.
On May 21, 2003, the trial court issued an order and opinion disposing of the appeal in which it stated the following, in pertinent part:
Although not exclusionary on its face, [Landowner and AT
&
T] contend the Ordinance is exclusionary in fact and therefore invalid because once all of the requirements and restrictions contained in the Zoning Ordinance that relate to communications facilities are applied, less than 1% of the total parcels and acreage in the Borough are eligible for the location of a communications facility. In arriving at this conclusion, [Landowner and AT & T] considered available parcels partly or fully located in C-l, C-2, POPS or R-4 Zoning Districts which were two acres or greater in size. In coming to their decision, the Zoning Board referred to Ordinance No. 708 which adds “Communications Facilities” as conditional uses to II and 12 Zoning Districts.
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OPINION BY
Senior Judge KELLEY.
The Borough of Baldwin (Borough) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) which reversed the decision of the Zoning Hearing Board of the Borough of Baldwin (Board), and granted site-specific relief to Robert Macioce (Landowner) and Pittsburgh Cellular Telephone Company d/b/a A.T. & T. Wireless Services (AT
&
T) to construct a communications facility in the Borough’s Planned Residential Zoning District (PRD). We reverse.
Landowner owns a 70-acre parcel of land in the Borough’s PRD Zoning District.
On March 28, 2000, Landowner and AT & T entered into a lease agreement under which AT & T leased a 100-foot by 100-foot portion of the parcel to construct and operate a wireless communications facility.
The proposed facility consists of a 120-foot monopole with nine panel antennas, a 12-foot by 28-foot shelter at the base, and an eight-foot chain link fence surrounding the facility.
On July 10, 2001, Landowner and AT
&
T filed a challenge to the validity of the Borough’s Zoning Ordinance with the Board pursuant to Section 168-59A of the Borough’s Zoning Ordinance
and Section 916.1(a) of the Pennsylvania Municipalities Planning Code (MPC).
Landowner and
AT & T alleged that the Zoning Ordinance resulted in a
de facto
exclusion of communications facilities, that it violated the provisions of the Federal Telecommunications Act of 1996 (Telecommunications Act)
and, as a result, Landowner and AT
&
T are entitled to site-specific relief permitting the construction of the proposed communication facility on the proposed site.
With respect to the former claim, Landowner and AT & T alleged that when all of the requirements of Section 168-46.1 of the Borough’s Zoning Ordinance were applied to all of the suitable undeveloped lots located in the Borough’s R^t, POPS, C-l and C-2 Zoning Districts, less than 1% of the land in the Borough could be used as a communications facility.
With respect to
the latter claim, Landowner and AT
&
T alleged that the Borough had violated Section 332(c)(7)(B)(i)(ll) of the Telecommunications Act
by “[p]rohibit[ing] or having the effect of prohibiting the provision of personal wireless services.” Hearings before the Board ensued.
On December 24, 2001, the Board issued a decision disposing of the validity challenge in which it made the following relevant findings of fact:
8. On February 17, 1997, the Borough adopted Ordinance No. 708 permitting the development of communications facilities and tower sites as conditional uses in certain districts and establishing standards and criteria for granting such conditional uses ...
9. Section 2 of Ordinance No. 708 permits communications facilities and tower sites as conditional uses in “residential districts,” “commercial districts” and “industrial districts” within the Borough.
10. Ordinance No. 708 does not permit communications facilities and tower sites in PRD and POPS zoning districts.
11. Section 4 of Ordinance No. 708 sets forth specific standards and criteria for the granting of conditional uses for communications facilities and tower sites ...
12. [Landowner and AT & T] have not offered any evidence that would tend to satisfy the enumerated standards and criteria for the grant of either a conditional use or a use or dimensional variance as set forth in the Borough Ordinance or the law set forth in the [MPC]. In any event the granting or denial of a conditional use is not within the jurisdiction of this [Board] because it is a matter that must be submitted to the Borough Planning Commission and thereafter to the Borough Council.
Board Decision at 2.
Based on the foregoing, the Board made the following relevant conclusions of law:
(C) The Borough Zoning Ordinance is presumed valid under the law and the challengers to the constitutionality of the zoning ordinance bear a heavy burden of proof and they must demonstrate that the Ordinance completely excludes their proposed legitimate uses. [Landowner and AT & T] have not sustained their burden of proof.
(D) The Borough Zoning Ordinance is not an exclusionary ordinance, but it does legally confine a type of activity, to wit, communications facilities and tower sites, to particular locations in the Borough. Therefore, there is not a total prohibition of such land use within the Borough.
(E) Ordinance No. 708 established identifiable criteria that the governing body will apply in evaluating an applicant’s proposed land use, and in this case, the Ordinance sets forth the standards and criteria that the Borough Planning Commission and Council must utilize in determining whether [Landowner and AT & T] are entitled to a conditional use of the proposed site for the construction and operation of a communications facility and tower site.
(F) The Borough Zoning Ordinance, as amended by Ordinance No. 708, is
constitutionally valid and enforceable. Since it is not constitutionally invalid, [Landowner and AT & T] are not entitled to site-specific relief. This Ordinance does not violate the [Telecommunications Act].
Id.
at 2-3. As a result, the Board denied the request of Landowner and AT & T to declare the Zoning Ordinance invalid and for site-specific relief.
Id.
at 3.
On January 22, 2002, Landowner and AT
&
T appealed the Board’s decision to the trial court. On February 20, 2002, the Borough filed a notice of intervention in the appeal.
On May 21, 2003, the trial court issued an order and opinion disposing of the appeal in which it stated the following, in pertinent part:
Although not exclusionary on its face, [Landowner and AT
&
T] contend the Ordinance is exclusionary in fact and therefore invalid because once all of the requirements and restrictions contained in the Zoning Ordinance that relate to communications facilities are applied, less than 1% of the total parcels and acreage in the Borough are eligible for the location of a communications facility. In arriving at this conclusion, [Landowner and AT & T] considered available parcels partly or fully located in C-l, C-2, POPS or R-4 Zoning Districts which were two acres or greater in size. In coming to their decision, the Zoning Board referred to Ordinance No. 708 which adds “Communications Facilities” as conditional uses to II and 12 Zoning Districts. Although [Landowner and AT & T] did not include these additional areas in their calculations, the conclusion drawn by [Landowner and AT & T] is still valid. The majority of the additional area zoned II and 12 is in low lying areas where construction of a communications facility such as the one sought by [Landowner and AT & T] would not be feasible. Because the additional useable area provided by the inclusion of II and 12 areas is negligible, the [Landowner’s and AT
&
T]’s failure to include those areas does not change the exclusionary nature of the Zoning Ordinance.
Trial Court Opinion at 2.
Thus, the trial court found:
[I]n considering the total land in the Borough, [Landowner and AT & T] found less than 1% was available for a communications facility once all of the zoning restrictions were taken into consideration.
For the reasons stated above, this court finds that the [Borough’s] Zoning Ordinance concerning permissible sites for communications facilities exclusionary in fact and therefore invalid.
Id.
at 4.
Accordingly, the trial court entered an order reversing the Board’s deci
sion, and granting Landowner and AT & T site-specific relief to construct the proposed communications facility.
Id.
at 5. The Borough then filed the instant appeal of the trial court’s order.
In this appeal, the Borough claims: (1) the trial court erred in determining that the Borough’s Zoning Ordinance was
de facto
exclusionary; and (2) even if it is assumed that the Zoning Ordinance is
de facto
exclusionary, the trial court erred in granting Landowner and AT & T site-specific relief.
With regard to the purported invalidity of local zoning ordinances, as alleged in the instant case, it has been noted:
[T]he law applicable to this kind of claim is well settled. Zoning ordinances in Pennsylvania enjoy a presumption of constitutionality and validity, and the party challenging one bears the “heavy burden” of proving otherwise.
See [APT Pittsburgh Limited Partnership v. Penn Township,
196 F.3d 469, 475 (3rd Cir.1999)] (quoting
Benham v. Board of Supervisors of Middletown Township,
[22 Pa.Cmwlth. 245, 349 A.2d 484, 487 (1975));
see also Schubach v. Silver,
461 Pa. 366, 336 A.2d 328, 335 (1975);
Beaver Gasoline Co. v. Zoning Hearing Board of the Borough of Osborne,
445 Pa. 571, 285 A.2d 501, 503-04 (1971) (“the validity of a zoning ordinance is presumed and ... the burden of establishing its invalidity is upon the party who seeks to have it declared invalid.”).
In order to overcome this presumption of constitutionality, the challenger must demonstrate that “the ordinance totally excludes an otherwise legitimate use.”
Farrell v. Worcester Township Board of Supervisors,
[85 Pa.Cmwlth 163, 481 A.2d 986, 989 (1984)]. “Unless the challenger demonstrates that the ordinance in question completely or effectively excludes a legitimate use, ... the challenger has failed to .carry its burden. ...”
Ficco v. Board of Supervisors of Hempfield Township,
677 A.2d 897, 899 (Pa.Cmwlth.1996) (citing
BAC, Inc.
v. Board of Supervisors of Millcreek Township,
534 Pa. 381, 633 A.2d 144 (1993));
Overstreet v. Zoning Hearing Board of Schuylkill Township,
[152 Pa.Cmwlth 90, 618 A.2d 1108 (1992)]. To prove total or effective exclusion of a permitted use, the challenger can show that the ordinance is either de jure or dé facto exclusionary:
De jure exclusion exists where an ordinance, on its face, totally bans a legitimate use. De facto exclusion exists where an ordinance permits a use on its face, but when applied acts to prohibit the use throughout the municipality.
Penn Township,
196 F.3d at 475 (internal quotations and citations omitted).
If the challenger is able to establish that the ordinance excludes the use in question, the burden then shifts to the state or locality “to demonstrate that the zoning ordinance ‘[bjears a substantial relationship to public health, safety, and welfare.’ ”
Id.
(quoting
Borough of Edgewood v. Lamanti’s Pizzeria,
[124 Pa.Cmwlth. 325, 556 A.2d 22, 24 (1989)]); 53 P.S. § 10916.1(a)(5)(i)-(v);
see also Fernley v. Board of Supervisors of Schuylkill Township,
509 Pa. 413, 502 A.2d 585, 587 (1985) (‘Where the challenger proves a total prohibition of a legitimate use, the burden shifts to the municipality to establish that the prohibition promotes public health, safety, morals and general welfare.”) (citing
Beaver Gasoline,
285 A.2d at 503);
Ellick v. Board of Supervisors,
[17 Pa.Cmwlth. 404, 333 A.2d 239, 243-44 (1975) ].
Omnipoint Communications Enterprises v. Zoning Hearing Board of Easttown Township,
248 F.3d 101, 106-107 (3rd Cir.2001).
As noted above, the Borough first claims that the trial court erred in determining that its Zoning Ordinance is
defacto
exclusionary. In the proceedings below, Landowner and AT & T asserted that the Zoning Ordinance is
de facto
exclusionary, in that it fails to provide a “fair share” of Borough land for a communications facility use.
In particular, Landowner and AT & T alleged that although the ordinance provides for “communications facilities” as a conditional use in Section 168-46.1, such a use is only permitted on less than]¿ of
1% of
all of the parcels or total land in the Borough when all of the restrictions in that section are applied. Indeed, it was on this basis alone that the trial court determined that the Zoning Ordinance was unconstitutionally exclusionary and reversed the Board’s decision.
See
Trial Court Opinion at 3, 4.
As the Pennsylvania Supreme Court has noted:
The “fair share” test ... was judicially developed as a means of analyzing zoning ordinances which effect a partial ban that amounts to a
de facto
exclusion of a particular use, as distinguished from
those ordinances which provide for a total or
de jure
exclusion. The
de facto
exclusionary doctrine “was intended to foster regional growth by requiring communities located on the fringes of the metropolitan areas to absorb the ‘increased responsibility’ and ‘economic burdens’ which time and natural growth invariably bring.” Cases involving
de facto
or partially exclusionary zoning turn on the question of whether the provision for a particular use in the ordinance at issue reasonably accommodates the immediate and projected demand for that use ...
Fernley,
509 Pa. at 418-419, 502 A.2d at 587-588 (citations and footnote omitted).
“[H]owever, we have held in a commercial fair share challenge, ‘it is not sufficient for a developer to merely point out that a relatively small area of the municipality is zoned for commercial use without any proof that the needs of the community’s residents are not being adequately served.’ ”
Montgomery Crossing Associates v. Township of Lower Gwynedd,
758 A.2d 285, 289 (Pa.Cmwlth.2000),
petition for allowance of appeal denied,
565 Pa. 656, 771 A.2d 1291 (2001) (citation omitted).
Thus, it is clear that the trial court erred in reversing the Board’s decision on the exclusive basis that “[l]ess than 1% was available for a communications facility once all of the zoning restrictions were taken into consideration.” Trial Court Opinion at 4.
Accordingly, the order of the trial court is reversed.
ORDER
AND NOW, this 28th day of May, 2004, the order of the Court of Common Pleas of Allegheny County, dated May 22, 2003 at No. S.A. 02-83, is REVERSED.