Ogden Fire Co No 1 v. Upper Chichester Twp

• Court: Court of Appeals for the Third Circuit
• Decided: October 4, 2007
• Docket: 06-2297
• Status: Published

Opinion

Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit

10-4-2007

Ogden Fire Co No 1 v. Upper Chichester Twp Precedential or Non-Precedential: Precedential

Docket No. 06-2297

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation "Ogden Fire Co No 1 v. Upper Chichester Twp" (2007). 2007 Decisions. Paper 296. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/296

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL

UNITED STATE COURT OF APPEALS FOR THE THIRD CIRCUIT

06-2297/07-1694

OGDEN FIRE COMPANY NO. 1; SPRINT SPECTRUM, L.P. Appellees v.

UPPER CHICHESTER TOWNSHIP; ZONING HEARING BOARD OF UPPER CHICHESTER TOWNSHIP, Appellants

Appeal from the United States District Court for the Eastern District of Pennsylvania (05-cv-01031) District Judge: Hon. John R. Padova

Argued: May 21, 2007

Before: McKee, Ambro, Circuit Judges and Ackerman,* District Judge

* The Honorable Harold Ackerman, Senior District Judge of the United States District Court for the District of New Jersey, sitting by designation.

1 (Opinion filed: October 4, 2007 )

JOHN J. RENDEMONTI, ESQ. (Argued) 14 Regency Plaza Glenn Mills, PA 19342 HOWARD J. GALLAGHER, III, ESQ. Gallagher & Gallagher 18 East Second Street P.O. Box 348 Media, PA 19063 Attorneys for the Appellants

RUDOLPH GARCIA, ESQ. (Argued) Buchanan, Ingersoll & Rooney PC 1835 Market Street, 14th Floor Philadelphia, PA 19103 JOHN JAY WILLS, ESQ. 4124 Chichester Avenue Boothwyn, PA 19061 Attorneys for the Appellees

OPINION

McKEE, Circuit Judge.

Upper Chichester Township and the Zoning Hearing

Board of Upper Chichester Township appeal two orders of the

district court reversing a determination of the Zoning Hearing

2 Board based upon the district court’s conclusion that the denial

of requested zoning approvals and a building permit violated

the Telecommunications Act of 1996. For the reasons that

follow, we will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ogden Fire Company No. 1 (“Ogden”), is a volunteer

fire company that provides fire, ambulance, and rescue services

to the residents of Upper Chichester Township, Delaware

County, Pennsylvania and surrounding areas. It responds to

approximately 550 requests for assistance per year. Ogden’s

firehouse is located in a zoning district that is classified as an R-

2 Medium Density Residential District. Ogden uses the

Delaware County Emergency Radio Center radio service (the

“County System”), which is a 500 MHZ system with three

repeaters located throughout Delaware County. This system is

associated with the 911 system. Ogden experiences coverage

3 problems in certain areas of the Township. To make matters

worse, the County System is not accessible to all public-safety

personnel.

Ogden also shares a 150 MHZ radio system (the “Local

System”) within the Township with other fire companies, local

police, school crossing guards and street maintenance crews.

However, the Local System does not have repeaters and cannot

reach all areas of the Township. The resulting gap in coverage

over the Local System has resulted in problems that include fire

fighters not being able to communicate with police. The

problems have been building for the last ten years and occur on

an almost daily basis. In fact, according to testimony on this

record, poor radio communication has contributed to the deaths

of two people.

Sprint Spectrum, L.P .(“Sprint”), provides personal

communications services (“PCS”) over a network of wireless

4 telecommunications facilities (“WCF”) pursuant to a license

from the Federal Communications Commission (“FCC”).

Portable telephones and devices using PCS technology operate

by sending and receiving radio signals transmitted between the

telephone or device and antennas mounted on towers, poles,

buildings or other structures. The antennas are connected to

transmitters that transmit the signals over landlines that are part

of the national telephone network. These antennas and the

related equipment are commonly known as a “cell site,” and the

surrounding area serviced by the antenna, and its associated

equipment, is commonly referred to as a “cell.”

Telecommunication providers cannot provide reliable

service to mobile customers unless there is a continuous series

of overlapping cells arranged in a honeycomb-like grid. Absent

such interwoven fields of coverage, a user experiences

unreliable service upon entering an area without a functioning

5 cell. These problems include the inability to make or receive

calls as well as dropped, interrupted, and/or unintelligible calls.

Because portable telephones have very little power, they

need to be within two miles of a cell site to function properly,

and, the quality of the communication decreases as the distance

to the cell site approaches the two mile perimeter. Accordingly,

the cells must be closely placed. Sprint’s engineers use

complex computer programs to determine appropriate locations

for cell sites based upon such variables as the boundaries of the

cell, topography, and any physical obstructions within the area

of coverage.

In order to correct the problems it has encountered with

its communications system, Ogden proposed building a radio

operations center inside its firehouse at 4300 Naamans Creek

Road and a 130 foot radio tower in the rear yard of the

firehouse. It is, however, difficult for a volunteer fire company

6 to afford the construction costs of such a project. Accordingly,

Ogden and Sprint entered into an agreement that would have

addressed Ogden’s communications problem and safety

concerns while alleviating Sprint’s problems with the gaps in its

coverage in the vicinity of Ogden’s firehouse.

Pursuant to that agreement, Ogden and Sprint

(hereinafter referred to jointly as “Ogden/Sprint”) filed a joint

application with the Zoning Board on August 31, 2004, for

approval of the erection of a steel monopole 130 feet high for

mounting emergency service and wireless telecommunications

antennas. With Sprint’s antennas on the top of the monopole

would increase the total height of the tower to 133 feet. Sprint

was to install the tower to meet both its needs and Ogden’s

needs and then pay monthly rent to Ogden. The Zoning

application asked the Board to:

(1) find that the proposed monopole and related

7 radio equipment are permitted as an accessory use to the permitted fire company use on the subject property pursuant to § 303.1 or § 304 of the Zoning Ordinance;1 (2) grant a variance from the height limitation of § 305.8 of the Zoning Ordinance; (3) approve a special exception for Sprint's proposed wireless communications facility pursuant to §§ 303.7, 1814 and 2106(2) of the Zoning Ordinance; or, in the alternative, (4) grant a variance from the use provisions of § 302 of the Zoning Ordinance to allow the proposed monopole, equipment and use.

Ogden Fire Co. No. 1 v. Upper Chichester Twp., No. 05-1031,

2006 WL 851391, *2 (E.D. Pa. Mar. 30, 2006) (“Ogden I”).

During the zoning hearings that followed, Ogden/Sprint

presented the testimony of several witnesses to establish that:

the tower and equipment were necessary, the tower was an

1 In 1969, the Township Zoning Hearing Board had granted a special exception to Ogden to use its property as a “public use” under § 303.1 of the Township’s Zoning Ordinance.

8 accessory use to the firehouse,2 Ogden’s use of the tower would

be “a municipal or public use,” the tower would satisfy the

special exception criteria regarding the height of the monopole

as an “accessory structure,” and, if not, that Ogden/Sprint were

entitled to a variance. They also asked the Board to recognize

that other carriers providing functionally equivalent services

have been granted greater relief than that requested by

Ogden/Sprint, and that the proposed monopole/tower was the

least intrusive means of addressing Sprint’s gap in coverage in

the Township.

A. The Zoning Board’s decision.

On February 10, 2005, the Zoning Board denied the

2 The Zoning Ordinance defines “accessory uses” to include: “any accessory use on the same lot with and customarily incident to any of the uses permitted above and not detrimental to the neighborhood.” Zoning Ordinance, §§ 204, 304.

9 application in a written opinion that treated the joint application

of Ogden/Sprint as one filed solely by Sprint. According to that

interpretation, Sprint was requesting Zoning Board approval to

construct its own WCF tower, and Ogden would thereafter

attach its radio antenna to the tower to enhance Ogden’s

communication systems. The Zoning Board concluded that

Sprint had not established the propriety of erecting a stand-

alone WCF tower in an R-2 Residential District. The Board

concluded that the WCF was not an accessory structure to the

firehouse because it was not a use “customarily incidental and

subordinate to the principal use of the land or building and

located on the same lot with such principal use.” Ogden I, 2006

WL 851391 at *3. The Board also refused to grant the special

exception required to build a tower taller than 15 feet because

the WCF is not an accessory use or structure to the firehouse.

The Board refused to grant a special exception to build the

10 WCF because stand-alone WCF towers are not permitted in R-2

Residential Districts. Finally, the Board also rejected the

alternate request for a variance because a 133 foot stand-alone

WCF tower is not a structure permitted in an R-2 Residential

District and because Sprint had not satisfied the requirements

for a variance under the Pennsylvania Municipal Planning

Code.

II. DISTRICT COURT PROCEEDINGS

Ogden/Sprint responded by filing a joint complaint

against the Township and Zoning Board (hereinafter

collectively referred to as the “Township”) in district court

alleging violations of the Telecommunications Act of 1996

(“TCA”), 47 U.S.C. § 332, and related claims. In Count I,

Ogden/Sprint alleged that the Township violated 47 U.S.C. §

332(c)(7)(B)(i)(I) by unreasonably discriminating among

providers of functionally equivalent services in denying

11 Ogden/Sprint’s joint application despite having previously

approved a similar application filed by Reliance Hook and

Ladder Co. No. 1 and Metro Phone in an R-2 Residential

District, and having also previously approved the application of

AT&T Wireless to build a telecommunications tower in an R-1

Residential District. Count II alleged that the Township

violated 47 U.S.C. § 332(c)(7)(B)(iii) because the denial of the

Ogden/Sprint application was not supported by substantial

evidence. Count III asserted various causes of action under

state law that we need not address.

After the close of discovery, the parties filed cross-

motions for summary judgment. In a very thorough and well

reasoned Memorandum Opinion, the district court granted

summary judgment in favor of Ogden/Sprint on their claims

under the TCA. See Ogden I, 2006 WL 851391. In ordering

relief, the court ordered the Township:

12 to grant the application of Ogden Fire Co. No. 1 and Sprint Spectrum, L.P., to build a 130 foot monopole radio tower and related radio equipment as an accessory use to Ogden’s use of its property as a firehouse and to issue the Plaintiffs the requested special exceptions in accordance with Zoning Ordinance §§ 1706 and 303.7. Upper Chichester Township shall issue any and all zoning permits for the proposed tower and supporting structures within 30 days of the date of this Order.3

Id. at *21. The Township has appealed that Order. That appeal

is No. 06-2297.

On May 3, 2006, the Zoning Board granted the special

exceptions to Ogden/Sprint. However, Ogden/Sprint’s

3 In Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999), the Court of Appeals for the Second Circuit commented that “[t]he TCA does not specify a remedy for violations of the cellular siting subsection.” Id. However, “[t]he majority of district courts that have heard these cases have held that the appropriate remedy is injunctive relief in the form of an order to issue the relevant permits.” Id. (citations omitted). In Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Twp. (“Pine Grove II”), 181 F.3d 403, 410 (3d Cir. 1999), we held that “[i]njunctions are proper forms of relief under § 332(c)(7)(B)(v).” Inasmuch as the district court’s order was in the form of an injunction, it remains in effect and must be complied with during the pendency of this appeal. See Fed.R.Civ.P. 62(a).

13 application for a building permit in order to build the radio

tower was denied by the Township’s Building Inspector

because the Building Inspector determined that the lease4 of that

portion of Ogden’s rear yard to Sprint where the radio tower

was to be built was the division or allocation of land by means

of a leasehold. According to the Building Inspector, it therefore

required the approval of a Subdivision and Land Development

Application pursuant to the Township’s Subdivision and Land

Development Ordinance and Section 107(a) of the Pennsylvania

Municipalities Planning Code (“MPC”). Ogden/Sprint

thereafter filed a motion to compel the issuance of a building

permit in district court and requested monetary sanctions.

On January 17, 2007, the district court issued an Order-

Memorandum. Ogden Fire Co. No. 1 v. Upper Chichester

Twp., No. 05-1032, 2007 WL 137848 (E.D. Pa. Jan. 17, 2007)

4 Rather than assigning Sprint a position on the radio tower, Ogden leased 2,500 square feet of its real property to Sprint for the purpose of constructing, operating and maintaining the tower and related equipment.

14 (“Ogden II”). It noted that under Pennsylvania law, leases

which allocate land, as opposed to assigning positions on a pole

or tower, constitute a subdivision or allocation of land pursuant

to § 107(a) of the MPC. Id. at *2 (citing Upper Southampton

Twp. v. Upper Southampton Twp. Zoning Hearing Board, 885

A.2d 85, 92 (Pa. Commw. Ct. 2005), appeal granted, 895 A.2d

1265 (Pa. 2006)). However, the district court reasoned that

there was nothing in the record before it that would support the

denial of a Subdivision and Land Development Application or

the issuance of a building permit. Id. at *3. Therefore, it

reasoned that a remand to the Township for consideration of a

Subdivision and Land Development Application and for a

building permit would frustrate the intent of the TCA. Id.

Accordingly, the court directed the Township to show cause

why an injunction should not be entered requiring the grant of

land development and subdivision approval and issuance of a

building permit. Id. After more briefing, on February 15, 2007,

the court ordered the Township to “issue all necessary approvals

15 and permits for the building of the 130 foot monopole radio

tower and related radio equipment in accordance with the

Application for Plan Examination and Building Permit of Sprint

Spectrum, L.P., dated August 31, 2006.”

The Township has filed an appeal from that order. That

appeal is No. 07-1694. On March 9, 2007, at our direction, the

Clerk consolidated the Township’s appeals for purposes of

scheduling and disposition. Each appeal is discussed

separately below.

III. THE TELECOMMUNICATIONS ACT OF 1996

Congress enacted the TCA to “provide ‘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 to

competition.’” APT Pittsburgh Ltd. P’ship v. Penn Twp., 196

F.3d 469, 473 (3d Cir. 1999) (quoting H.R. Rep. No. 104-458

(1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 10, 1124).

16 In order to achieve that goal without interfering with the

traditional right of local governments to regulate land use,

“Section 322(c)(7) of the TCA expressly preserves the

traditional authority enjoyed by state and local government to

regulate land use and zoning, but places several substantive and

procedural limits upon that authority when it is exercised in

relation to personal wireless service facilities.” Id.

The cellular siting subsection of the TCA provides as

follows:

(7) Preservation of local zoning authority. (A) General authority. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations. (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof -- (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

17 (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that in inconsistent with clause (iv) may petition the Commission for relief.

18 47 U.S.C. § 332(c)(7).

“Traditionally, the federal courts have taken an extremely

deferential stance in reviewing local zoning decisions, limiting

the scope of inquiry to the constitutionality of the zoning

decision under a standard of rational review.” Cellular Tel. Co.

v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir. 1999) (citing

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981)).

However, the TCA altered that traditional deference in very

important ways insofar as local decisions interfere with, or

impact upon, telecommunications facilities. Thus, “[a]lthough

Congress explicitly preserved local zoning authority in all other

respects over the siting of wireless facilities, § 332(c)(7)(A), the

method by which siting decisions are made is now subject to

judicial oversight, § 332(c)(7)(B)(v).” Id. Moreover, “denials

subject to the TCA are reviewed by [the] court [of appeals]

more closely than standard local zoning decisions.” Id. With

this framework as our guide, we address the issues that arise

from the Township’s decisions here.

19 IV. THE TOWNSHIP’S APPEAL (No. 06-2297)

The Township’s appeal of the district court’s order

reversing the decision of the Zoning Board and granting

summary judgment to Ogden/Sprint is subject to plenary

review. See, e.g., Jensen v. Potter, 435 F.3d 444, 448 (3d Cir.

2006). We limit our review of the claim that the Zoning

Board’s rejection of the joint application was not supported by

“substantial evidence” to the record as it existed when the

zoning decision was made. See Nat’l Tower, LLC v. Plainville

Zoning Bd. of Appeals, 297 F.3d 14, 22 (1st Cir. 2002).

However, we review Ogden/Sprint’s claim of unreasonable

discrimination under the TCA on the record as supplemented in

the district court. See Nextel West Corp. v. Unity Twp., 282

F.3d 257, 266-67 (3d Cir. 2002).

A. Substantial Evidence

As noted previously, the TCA requires that a decision “to

deny a request to place, construct, or modify personal wireless

service facilities shall be in writing and supported by substantial

20 evidence contained in a written record.” 47 U.S.C. §

332(c)(7)(B)(iii). “Substantial evidence is a legal term of art.”

Omnipoint Commc’ns Enters, L.P. v. Zoning Hearing Bd. of

Easttown Twp., 248 F.3d 101, 106 (3d Cir. 2001). “It does not

mean a large or considerable amount of evidence, but rather

such evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (citation and internal quotations

omitted). In reviewing a record for substantial evidence, we do

not “weigh the evidence contained in [the] record or substitute

[our] own conclusions for those of the fact finder, but rather

[we are] to determine whether there is substantial evidence in

the record as a whole to support the challenged decision.” Id.

(citation and internal quotations omitted). “[We] view[] the

record in its entirety and take[] account of evidence unfavorable

to the agency’s decision.” Omnipoint Corp. v. Zoning Hearing

Bd. of Pine Grove Twp. (“Pine Grove II”), 181 F.3d 403, 408

(3d Cir. 1999) (citation omitted). “The substantial evidence test

applies to findings made by a zoning hearing board under the

21 locality’s own zoning requirements.” Id.

The district court found that the Township’s denial of

Ogden/Sprint’s application was not supported by substantial

evidence on two distinct, but related grounds. The court granted

summary judgment to Ogden/Sprint because the Township

treated their joint application as the sole application of Sprint

for a stand-alone WCF tower, rather than as the joint

application of Ogden and Sprint to allow Ogden to erect a radio

tower for its own benefit, with Sprint thereafter attaching an

antenna by special exception. Ogden I, 2006 WL 851391 at

*12. The court also concluded that the denial of the special

exception was not supported by substantial evidence in the

written record. Id. at *19. The Township challenges both

findings.

(1). Joint Application of Ogden and Sprint versus Sole Application by Sprint

The Zoning Board explained its insistence on treating the

zoning application as Sprint’s application rather than a joint

22 application filed by Ogden and Sprint as follows:

This appeal by Sprint is and can only be a request for approval of a Wireless Communication Facility, and not solely as a tower to improve the radio signal of the fire company. There is no doubt that the appeal is for a permit to erect a WCF tower and to operate a WCF by a FCC licensed provider of cellular telephone service. The board cannot ignore that the appeal is by Sprint Spectrum LP, and that the testimony offered by Sprint on the record relates to a cellular telephone service. Although there was testimony that the fire company would be permitted to place its radio transmission equipment on the WCF, that does not convert this application into anything other than a Wireless Communication Facility for the transmission of cellular telephone service. In fact, section 1814 5.E of the ordinance requires that local police, fire, and ambulance companies be specifically offered co-location on a WCF tower.

Joint Appendix (JA) at 553.

As the district court observes, this finding was fatal to

the zoning application because the zoning ordinance clearly

prohibits the siting of a stand-alone WCF tower in an R-1 or R-

2 Residential District. See Ogden I, 2006 WL 851391 at *11

(citing Zoning Ordinance §§ 203, 303.7, 803, 903, 1003, 1103).

23 In explaining its decision to ignore Ogden’s interest in

the application, the Township insisted, according to the district

court, that “no matter how cleverly . . . worded, the Application

is an application for Sprint to build a WCF as a stand-alone

tower on Ogden’s property, a use which is not permitted in an

R-2 Residential District under the Zoning Ordinance.” Id. at

*10. The district court disagreed. The court held that the

application “was submitted to the Zoning Board as a joint

application [by Ogden and Sprint] to build a radio tower for

Ogden as an accessory use to Ogden’s use of the property as a

firehouse and for Sprint to attach a WCF antenna to that tower.”

Id. at *10. The court explained:

[T]he Zoning Board’s decision to treat the Application as an application brought solely by Sprint for the siting of a stand-alone WCF tower in an R-2 Residential District, rather than as a joint application to erect a radio tower to benefit Ogden, on which Sprint could attach an antenna by special exception, is not supported by substantial evidence in the written record. The Court further finds that the Zoning Board’s decision to ignore Ogden’s request to build the tower on its property as an accessory use to the

24 firehouse is not supported by substantial evidence in the written record.5

Id. at *12. Given Judge Padova’s thorough legal analysis, and

his meticulous review of the Zoning Board’s factual

5 Because the Zoning Board viewed the application as filed by Sprint alone for Sprint to build a WCF as a stand-alone WCF tower on Ogden’s property, the Board did not consider that portion of the application in which Ogden sought to erect the tower on its property as an accessory use to the permitted fire company use. The Board wrote that it “specifically does not render any opinion as to whether or not an antenna or tower for transmission of radio signals to be used by a fire company alone, is an accessory use or constitute [an] accessory structure.” JA at 554. Ogden/Sprint contend that in construing the application as Sprint’s alone and in not deciding that the radio was an accessory use to Ogden’s fire station, the Zoning Board failed to decide the application as actually submitted and failed to decide Ogden’s request at all. Accordingly, they argue that the application as submitted is deemed approved under state law. There is a considerable force to that argument. Under Pennsylvania law, a zoning board “shall render a written decision . . . on the application within 45 days after the last hearing before the board . . . ,” but “where the board fails to render a decision within the period required by this subsection . . . , the decision shall be deemed to have been rendered in favor of the applicant.” 53 PA. CONS. STAT. ANN. § 10908(9). See Relosky v Sacco, 523 A.2d 1112 (1987). Nevertheless, because these appeals raise important federal issues under the TCA, we are reluctant to resolve this case on that basis, and we will address the merits of the arguments that are raised by the parties.

25 conclusions, we can best dispose of the Township’s challenge

to the district court’s order by quoting extensively from Judge

Padova’s Memorandum Opinion. In rejecting the Township’s

redefinition of the Ogden/Sprint application, the court

explained:

[The Township’s] position is belied by the Application, which states plainly that it is an application filed by Sprint and Ogden for a “[s]teel monopole 130 feet in height for mounting emergency service (fire company) and wireless [t]elecommunications (PCS) antennas.” Indeed, the background section of the Application states that:

Ogden currently operates a radio system from its property, but that radio system lacks adequate coverage in parts of its service area. Installation of a repeater radio on a tower of substantially greater height will substantially improve its radio communications and thus the safety and efficiency of this [sic] volunteers. Ogden desires to make this improvement. The proposed monopole will meet this need.

Id. at *11.

The Township does not directly claim that the district

court’s finding of a joint application was clearly erroneous.

26 Rather, the Township relies upon certain provisions of the lease

agreement between Ogden and Sprint to support its contention

that the zoning application was solely Sprint’s application.6

Ogden/Sprint argue that the Township did not raise the issue of

their lease in the district court and that it is therefore waived.

See Delaware Nation v. Pennsylvania, 446 F.3d 410, 416 (3d

Cir. 2006) (“Absent exceptional circumstances, this Court will

not consider issues raised for the first time on appeal.”).

Assuming arguendo that the argument is not waived, it can

readily be rejected as meritless.

The Township’s reliance on the provisions of a lease

between the two applicants ignores the very nature of the

zoning application process. Zoning regulations govern the use

of the land. Frederick v. Zoning Hearing Bd. of Conewago

6 The Township refers to a lease agreement that was offered as an exhibit at the zoning hearing, and certain provisions of the lease which appear to give Sprint the sole ownership of, and control over, the monopole tower as well as any equipment attached to it. According to the Township, the unilateral nature of the terms of that lease can only mean that the zoning application was really for the sole benefit of Sprint.

27 Twp., 713 A.2d 139, 141 (Pa. Commw. Ct. 1998) (citation

omitted). “Zoning regulations concern the physical use to

which land is put. Zoning laws, enactments under the police

power, are not concerned with the method of ownership of

property. . . . [I]f a use is permitted, a municipality may not

regulate the manner of ownership of the legal estate.” Id.

(citation omitted). Accordingly, actual ownership of the

proposed tower is as irrelevant as the relationship between

Ogden and Sprint insofar as the zoning application is

concerned.

Moreover, the Zoning Board’s focus on the nature and

extent of Sprint’s involvement totally obfuscated the Zoning

Board’s inquiry and analysis. The question before the Zoning

Board was whether the proposed use of the radio tower would

be accessory to the firehouse; the issue was not the respective

rights of the applicants, nor the nature of the interest of each

under the terms of their lease. Accordingly, the district court

correctly rejected the Township’s effort to view the joint

28 application of Ogden and Sprint as the sole application of

Sprint.

(2). Substantial Evidence

Ogden/Sprint applied for two special exceptions for the

siting and construction of the radio tower. Pursuant to § 1706.2

of the zoning ordinance they sought a special exception to build

a tower higher than the height limitation for accessory

structures.7 They also sought a special exception pursuant to §

303.7 of the zoning ordinance to attach a WCF antenna to that

tower.8

A “special exception” in zoning law is “a conditionally

permitted use, allowed by the legislature if specifically listed

7 Zoning ordinance § 1706.2 provides that “[n]o accessory structure shall be more than one (1) story or fifteen (15) feet in height, except when a greater height is permitted by special exception in the case of any accessory to a non- residential use.” 8 Zoning ordinance § 303.7 allows a WCF “with Antenna attached to a nonresidential building or structure of a permitted . . . municipal or governmental building or facility, and a building or structure owned by a public utility” in an R-2 Residential District as a use permitted by special exception.

29 standards are met.” In re Brickstone Realty Corp., 789 A.2d

333, 340 (Pa. Commw. Ct. 2001) (citation omitted). Thus, a

special exception is not really an exception at all. Rather, it is

“a use permitted conditionally, the application for which is to be

granted or denied by the zoning hearing board pursuant to

express standards and criteria.” Id. (citation omitted). “Where

a particular use is permitted . . . by special exception, it is

presumed that the local legislature has already considered that

such use satisfies local concerns for the general health, safety,

and welfare and that such use comports with the intent of the

zoning ordinance.” Id. (citation omitted).

Once an applicant for a special exception establishes it

has complied with the controlling ordinance, the applicant is

entitled to a presumption that the requested use “is consistent

with the promotion of health, safety, and general welfare.” Id.

(citation omitted). Accordingly, “[t]he burden then shifts to

objectors to prove that the proposed use is not, in fact,

consistent with the promotion of health, safety, and general

30 welfare.” Id. (citation omitted).

In order to receive approval pursuant to § 1706.2,

Ogden/Sprint had to satisfy the conditions for special exception

listed in § 1802 of the zoning ordinance. That section requires

the Zoning Board to consider, where appropriate, the following

factors in considering a request for a special exception:

a. That the proposed use is consistent with the statement of community objections per Section 103 and the statement of purpose for the district in which it is proposed.9

b. That the proposed use is appropriate for the site in question in terms of size, topography, natural features, [and] drainage, . . . .

c. That the proposed use is compatible with the

9 The statement of community objectives provided in § 103 state that this “Zoning Ordinance is intended to implement the principles, policies and objectives of the Comprehensive Plan and to guide and regulate the orderly growth and development of Upper Chichester Township.” Zoning Ordinance § 103. The statement of purpose for R-2 Residential Districts provides that such districts “are to provide for continued medium density suburban type, single-family residential development; to preserve existing medium density development and open space; and to provide for and regulate certain uses permitted [by] special exception.” Zoning Ordinance § 301.

31 character of the surrounding neighborhood, will not interfere with or detract from legitimate uses and adjacent properties, and that adequate measures will be provided through . . . site layout, landscaping, [and] planting . . . to minimize any adverse impacts caused by noise, lights, glare, odors, smoke, fumes, traffic, parking, loading and signage.

d. That the proposed use will serve the best interest of the Township, convenience of the community and the public health, safety and welfare.

e. That the proposed use is consistent with the Township Comprehensive Plan.

f. That the proposed use promotes orderly development, proper population density and the provision of adequate community facilities and services, including police and fire protection.

Zoning Ordinance § 1802.1

In order to receive permission to attach Sprint’s WCF

antenna to the tower as a special exception pursuant to § 303.7,

Ogden/Sprint had to satisfy the relevant conditions contained in

§ 1814 of the zoning ordinance. That section required the

following:

A. The applicant shall demonstrate, using

32 accepted technological evidence, that the Antenna and Antenna Support Structure must be located where proposed in order to satisfy its function in the applicant’s grid system.

B. If the applicant proposes to build a Tower (as opposed to mounting the Antenna on an existing tall structure), it is required to demonstrate that it contacted the owners of tall structures within a one-mile radius of the site proposed, requested permission to install the Antenna on those tall structures and was denied permission for reasons other than economic reasons. . . . If the Antenna can be physically and legally accommodated on an existing tall structure, the Township may deny the application to construct a new Tower.

C. The applicant shall demonstrate that the Antenna Height is the minimum required to function satisfactorily. . . .

D. The applicant shall demonstrate that the proposed Antenna and Antenna Support Structure are safe and the surrounding properties will not be negatively affected by Antenna Support Structure failure, falling ice or other debris. . . .

E. [T]he proposed Antenna Support Structure shall be required to accommodate, where possible, other users including . . . local police, fire and ambulance companies. . . .

F. The applicant must demonstrate that it is licensed by the Federal Communication Commission (FCC) to provide wireless

33 communications. . . .

G. As the wireless communications facility is fully automated, adequate parking shall be required for maintenance workers.

H. Antenna Support Structures shall, to the extent possible, be finished so as to reduce the visual impact. . . .

I. A full site plan shall be required for all Landsites. . . .

J. A plan shall be required for all WCF . . . to illustrate the relationship between the proposed facility and the adjacent structures and property lines.

K. Towers shall be designed and constructed to all applicable standards of the American National Standards Institute. . . .

L. A soil report . . . shall be submitted to the Township. . . .

M. Towers and Antenna shall be designed to withstand wind gusts of at least 100 miles per hour.

N. An Antenna may not be located on a building or structure that is listed on the Township’s Historic Resources Map.

O. No Antenna or its support structure may be artificially lighted except when required by the

34 Federal Aviation Agency.

P. Applicant shall maintain with the Township the current name, address and emergency telephone number of the owner or operator. . . .

Zoning Ordinance § 1814.5.

During the hearing before the Zoning Board,

Ogden/Sprint presented the testimony of a civil engineer, James

Rudolph, and submitted a plan showing the relationship

between the proposed tower and the adjacent structures and

property lines. The plan also showed the vegetation on Ogden’s

property, including existing stands of mature trees, which,

according to Rudolph, would act as buffers. Rudolph testified

that the tower and antenna would be designed by a licensed

professional engineer consistent with all applicable codes.

Rudolph also stated that the completed tower would withstand

wind gusts of up to 100 miles per hour, not pose any safety

concerns, provide for adequate storm water management,

comply with landscaping and soil requirements, and would not

affect the use of adjacent properties. Furthermore, the tower

35 and necessary communications equipment would not affect

traffic conditions or generate noise and would be unlighted

except for a work light that could be turned on when needed,

and that there was already adequate parking at the site for

maintenance personnel. The distance from the radio tower to

each of the neighboring properties would be greater than the

tower’s height, preventing damage to neighboring properties

caused by the tower’s falling or dropping ice and that there

would be a multi-agency 911 cabinet for Upper Chichester. He

testified that Ogden/Sprint would install additional trees to add

to the existing buffer along Ogden’s property lines and that the

proposed tower would not alter the essential character or

essence of the surrounding neighborhood.

Ogden/Sprint also submitted the expert report of Dr. Ken

Foster, an expert on the health effects of radio frequencies. He

opined that the tower and communications facility would

comply with all applicable FCC standards regarding

electromagnetic radiation. In addition, Clement Poole, a radio

36 frequency engineer, testified about studies he performed

regarding Sprint’s weak wireless communications service in the

area of Naamans’s Creek Road, where the Ogden firehouse is

located. These studies included testing PCS coverage at nearby

tall towers to see if Sprint could solve its service problems by

attaching an antenna to an existing tower. He determined that

the Ogden location was the best one. He also concluded that if

Sprint were not permitted to attach an antenna to the proposed

tower, Sprint would have poor to no service in that area, and

that the proposed tower was the minimum required to alleviate

Sprint’s coverage problems.

William T. Robinson, former Township Police Chief and

Vice President of Ogden, testified that the facility would benefit

the public health, safety and welfare by enhancing

communications between the fire company, the Township,

School District and community.

As the district court observed, “[d]espite the evidence

presented by [Ogden/Sprint] in support of their Application,

37 which satisfies the relevant requirements of §§ 1802 and 1814

of the Zoning Ordinance, the Zoning Board found that the

proposed tower did not satisfy these factors.” Ogden I, 2006

WL 851391 at *16. The Zoning Board concluded:

(1) That the proposed use is not consistent with the statement of community objectives per Section 103 and the statement of purpose for the district in which the use is proposed.

(2) That the proposed use is not appropriate for the site in question in terms of size, topography, natural features, and that adequate provisions were not provided to protect sensitive environmental features.

(3) That the proposed use is not compatible with the character of the surrounding neighborhood, will interfere with or detract from legitimate uses and adjacent properties.

(4) That the proposed use will not serve the best interest of the Township, convenience of the community and the public health, safety and welfare.

(5) That the proposed use is not consistent with the Township Comprehensive Plan.

(6) That the proposed use will not reflect effective site planning and design in terms of energy efficiency, environmental protection and

38 aesthetic composition.

The Zoning Board based these conclusions on the

following findings of fact:

1. That Appellant proposes to erect a 133 foot stand alone WCF tower for transmission and/or reception of Wireless Communication Services as defined in the Ordinance and that the tower will accommodate the needs of Ogden Fire Company with respect to enhancing the Fire Company’s radio signal.

2. That the principal use of the proposed tower is to operate as a WCF Antenna.

3. That Appellant is located in an R-2, Medium Density Residential District.

4. That the Appellant, the Ogden Fire Company [,] is an existing non-conforming use pursuant to the ordinance.

5. That a single 133 foot tower is not the only means by which Appellant could ameliorate or correct its alleged lack of adequate service in the area around the Ogden Fire Company.

6. That there exist other solutions to help ameliorate the alleged lack of service other than to erect a single 133 foot stand along WCF tower at Appellant’s location.

7. That there is adequate wireless communication

39 service in the area around Ogden Fire Company provided by other providers of Wireless Communication Services.

8. That Appellant did not propose a WCF antenna to be “attached to a nonresidential building or a structure of a permitted church, educational, public, municipal or governmental building or facility, and a building or structure owned by a public utility regulated by the Pennsylvania Utility Commission” which is permitted as a Special Exception in an R-2 Residential District.

9. That Appellant did not produce evidence from the owners of other structures and tall structures in the area around Ogden Fire Company refusing to allow Appellant to attach an antenna to their existing structures and tall structures.

10. That a 133 foot stand alone tower will adversely affect the property values of the immediately adjacent residential properties.

The district court properly rejected most of the Board’s

findings out of hand. The court ruled that Findings of Fact 1,

2 and 8 were based on the Zoning Board’s mischaracterization

of the application as solely Sprint’s request to build a stand-

alone tower. Those three findings were irrelevant to whether

Ogden/Sprint’s joint application satisfied the requirements for

40 special exceptions contained in zoning ordinance §§ 1802 and

1814. Id. at *17. Similarly, Finding of Fact 9 concerns a

condition that must be met only if the applicant wants to build

a stand-alone WCF tower. Thus, the district court also

considered Finding of Fact 9 irrelevant to the issue of whether

the application met the requirements for the special exceptions

actually requested. Id. The court concluded that Finding of

Fact 3 (the application involved an R-2, Medium Density

Residential District) was correct. Id. Indeed, this was not

contested. However, the court then noted that Finding of Fact

7 (adequate wireless communication service in the area of

Ogden’s property provided by other wireless providers) was not

at all responsive to any of the conditions for special exceptions

listed in §§ 1802 and 1814. Id. That finding was, therefore,

irrelevant to whether the application met the requirements for

the requested special exceptions. Id. The court concluded that

Finding of Fact 4 was incorrect because the Zoning Board had

granted Ogden a special exception to locate a firehouse on its

41 property as a public use on June 19, 1969, under § 303.1 of the

Zoning Ordinance. Id.

The district court explained that the only evidence

supporting Findings of Fact 5 and 6 (a single 133 foot tower is

not the only means by which Sprint could correct its service

problems and there are other solutions for those service

problems) was the evidence submitted by Karen Beck, an

objector who appeared before the Zoning Board. Id. She

testified that Sprint could solve its service problems by

attaching an antenna to another tall structure in the area or by

placing a tower somewhere else, but she conceded that she was

not an expert in telecommunications. Id. Despite her lack of

expertise, she testified about a tower in a neighboring township

purportedly having a height of 420 feet; 90 feet higher that the

proposed Sprint tower. Id. Beck also submitted pictures of

some of these structures. She claimed that there was no need

for the tower described in the Ogden/Sprint application. Id.

The district court was not convinced by Beck’s testimony

42 because there was “no evidence that any of the areas [Beck]

identified . . . [are] located within one mile of the Ogden

firehouse, the location where Sprint claims it needs to put a

WCF antenna in order to close its gaps in service.” Id.

Accordingly, it found that Findings of Fact 5 and 6 are not

supported by substantial evidence. Id.

The district court held that Finding of Fact 10 (a 133 foot

stand-alone tower will adversely affect the property values of

the immediately adjacent residential properties) was supported

only by testimony that the proposed project would lower

property values of some of the neighbors. Id. at *18. That

testimony was also offered by objectors who testified before the

Zoning Board. Arthur Sokolove, a spokesman for others living

near the firehouse, testified about the neighbors’ concerns that

they will be unable to sell their homes if the tower is built.

Sokolove testified that he would not have bought his house if

the proposed tower had been on Ogden’s property. Id. Another

objector, Linda McDonald, testified about her internet research

43 into property values. Her research disclosed that houses in New

York that were near towers sold for ten to twenty-five percent

less than houses that were not. Id. McDonald also testified that

she spoke with real estate agents and learned that houses near

towers take longer to sell and will sell for less when finally sold.

Id. The district court was not convinced by McDonald’s

testimony because she never identified the source of her internet

research, nor the agents to whom she spoke. Regina Hartney,

who does not live near the Ogden property, but who once

worked as a realtor, testified that the vast majority of people

would not choose to buy a home with a 100 foot tower in their

backyard if they have a choice. Id. On appeal, the Township

reasserts the value of Hartney’s testimony by describing her as

“not paid by any party, but an aggrieved party, [who] was

qualified to give an opinion on the question as to whether a 130

foot monopole erected on the property adjacent to the homes in

the neighborhood would negatively impact the value of these

homes.” Township’s Br. at 25. However, the district court

44 noted that Hartney did not take a poll or perform an actual study

of the impact of a radio tower on the price of nearby homes. Id.

Indeed, she explicitly admitted: “I’m not trying to tell you that

I have documented data. Joint Appendix at 342, ZHB Hearing

at 318-20.

Given the district court’s rejection of the Zoning Board’s

findings, the court held that the Board’s denial of the

application was not supported by substantial evidence in the

written record. Id. at *19. The Township contends that this

was error and it advances a number of arguments in support of

that contention. First, the Township argues that the district

court improperly substituted its judgment for that of the Zoning

Board in crediting Rudolph’s testimony “that the proposed

tower would not alter the essential character or essence of the

neighborhood.” Id. at *15. According to the Township, since

the Zoning Board rejected Rudolph’s testimony on this point,

the court could not find that he was credible. However, the

Township’s argument misconstrues what the district court did.

45 It did not find Rudolph’s testimony credible. Rather, it simply

reiterated his testimony. As Ogden/Sprint note, the issue is not

whether the district court accepted his testimony despite the

Zoning Board’s rejection of it. The issue is whether there was

evidence to refute his testimony, and the Township points to

nothing in the record to refute it on this point. The Township

simply says that “it defies common sense to conclude that a one

hundred thirty (130) foot monopole erected adjacent to homes

in one particular neighborhood would not ‘alter the essential

character or essence of the neighborhood.’” Township’s Br. at

24. However, that simplistic approach does not sufficiently

consider the impact of the existing fire station.

As noted, the Township granted a special exception to

Ogden for a “public use” for its fire station almost forty years

ago under § 303.1 of the Zoning Ordinance, and the Zoning

Ordinance allows for an accessory use. See n.1, supra. As also

noted, the Zoning Ordinance defines an “accessory use” as “[a]

use of land or of a building or portion thereof customarily

46 incidental and subordinate to the principal use of the land or

building and located on the same lot with such principal use.”

Zoning Ordinance, Appendix (i); see also n.2, supra. “Once

something is defined as an accessory use, it is allowed by right.”

AWACS, Inc. v. Zoning Hearing Bd. of Newtown Twp., 702

A.2d 604, 607 (Pa. Commw. Ct. 1997) (citation omitted). “In

order to establish that right, an applicant must prove that the use

sought is secondary to a principal use and that the use is usually

found with that principal use.” Id. (citation omitted). The

Zoning Ordinance also provides for, and allows, an “accessory

structure.” An “accessory structure” is defined as one that is

“detached from a principal building on the same lot and

incidental and subordinate to the principal use of the building

or use.” Zoning Ordinance, Appendix I.B.

Here, it is clear that the tower is an accessory

use/structure to Ogden’s firehouse. Robinson, Ogden’s Vice-

President, explained the relationship of the proposed tower to

the firehouse:

47 Communications are necessary so, essentially, this is an accessory use. If you look at communications, without it we are nowhere. We look upon redundancy in this age, particularly this age after 9/11, as critical to emergency operations. As a result we have taken action with regard to further alerting people through our cell phones, regular pagers in addition to fire pagers which we found to be inadequate in certain areas. So communication is definitely associated with any emergency service.10

App. 288. Accordingly, the district court quite correctly

concluded that Ogden’s use of “a radio tower to enhance its

existing radio-communications system would be an accessory

use. . . .” Ogden I, 2006 WL 851391 at *8.

The Township attempts to rely on AWACS, 702 A.2d

604, in arguing that the district court erred because the radio

tower is a commercial use that is not accessory to the firehouse

and therefore should not be allowed. In AWACS, a

telecommunications company (Comcast) applied for a building

permit to install 12 mobile phone antennae on the roof of an 18

10 As we noted earlier, there was evidence that the poor quality of Ogden’s emergency communications capabilities has contributed to two deaths in the past.

48 story apartment building. The application was denied as an

unpermitted use that was not accessory to any permitted use.

On appeal, the Commonwealth Court agreed stating:

[T]he principal use of the apartment building on which the antennae were to be erected is, of course, residential. The use to which Comcast would put these antennae is a business use. The antennae would serve Comcast’s customers in the area, regardless of where they live, not Newtown Towers residents alone. In fact, the antennae would not necessarily serve any residents of the building, unless they chose to become Comcast subscribers. In this sense, the antennae are unlike, for example, a television antenna on top of an apartment building that serves the tenants of that building as an incident to their residential use. The antennae may be a necessary part of Comcast’s business use, but they are in no manner incident, subordinate or secondary to Newtown Towers’ use, and may even lack a connection at all, if no Comcast subscribers reside there.

702 A.3d at 607. The Township now claims that the proposed

Ogden/Sprint tower “would not serve members of the fire

company unless they also subscribed to the available telephone

services,” and that it is therefore not a use that is incidental to

49 the fire house. Township’s Br. at 40. However, this argument

is once again tethered to the Board’s attempt to ignore the joint

nature of the Ogden/Sprint application and the Board’s

insistence on viewing it as an application of Sprint alone.

Given that analytical entry point, the Board concluded that

Sprint wanted to erect a stand-alone wireless communications

tower solely for its own use to provide service to its cellular

customers.11

It is, of course, true that Sprint’s antenna is intended to

provide service to Sprint’s customers rather than being part of

Ogden’s emergency communication system. However, that is

where the strained analogy to AWACS ends. It is abundantly

clear on this record that the radio tower will be used by Ogden

pursuant to its responsibility as an emergency responder. The

11 “‘It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in.’” United States v. Sigal, 341 F.2d 837, 844 (3d Cir. 1965) (quoting, United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J. dissenting)).

50 Zoning Ordinance allows for telecommunications uses in R-2

Residential Districts by special exception. See Zoning

Ordinance § 303.7. As we have already noted, once something

is defined as an accessory use, it is allowed by right. Because

the tower is an accessory use, on this record, Sprint can surely

attach an antenna to it by special exception.

While it is certainly conceivable that the proposed tower

could decrease property values, and that such a decrease would

qualify as reasonably detrimental to the neighborhood, that

conclusion is not supported by substantial evidence in this

record. The Township argues that it “should have been given

the deference to reject whatever unqualified expert testimony

was given to support the fantastic notion that [the monopole] .

. . would not impair aesthetics, the character of the

neighborhood, or negatively affect the desirability or value of

the property.” Township’s Br. at 26. The Township fails to

comprehend, however, that it is given deference in the form of

the substantial evidence standard, but the Township failed to

51 clear even this rather low hurdle; rather, it made conclusory

statements insufficiently buttressed by generalized notions

offered by poorly qualified witnesses.

Second, the Township contends that Regina Hartney’s

testimony constitutes substantial evidence supporting the

Zoning Board’s denial of the special exceptions. However, as

noted earlier, Regina Hartney, did not live near the Ogden

property, but once worked as a realtor. She testified that the

vast majority of people would not choose to buy a home with a

100 foot tower in their backyard if they had a choice. The

district court rejected her testimony and Finding of Fact 10 that

was based on it. The court explained:

Generalized concerns about aesthetics and property values are not sufficient to satisfy the objectors’ duty of presentation. The duty of presentation requires [objectors] to establish their objection with a ‘high degree of probability, and raise specific issues concerning the proposal’s general detrimental effect on the community. Indeed, the evidence of objectors must show a high probability of an adverse impact that will pose a substantial threat to the health and safety of the community. Mere speculation as to

52 possible harm is insufficient. (citations omitted). The United States Court of Appeals for the Third Circuit has recognized that [a] few generalized concerns about a potential decrease in property values, especially in light of [the plaintiff]’s contradictory expert testimony, does not constitute substantial evidence for the purposes of § 332(c)(7)(B)(iii) of the TCA.

Ogden I, 2006 WL 851391 at *18. (citations, quotation marks

and footnotes omitted) (brackets in original). Thus, the district

court dismissed the testimony because it amounted to nothing

more than generalized expressions about aesthetics and

decreases in property values that did not rise to the level of

substantial evidence required under the TCA. See Pine Grove

II, 181 F.3d at 409 (“[A] ‘few generalized expressions of

concerns with aesthetics cannot serve as substantial evidence’

and ‘a few generalized concerns about a potential decrease in

property values . . . does not seem adequate to support a

conclusion that the permits should be denied.’”) (quoting Oyster

Bay, 166 F.3d at 490).

The Township cites Omnipoint Commc’ns Enters., L.P.,

53 v. Zoning Hearing Bd. of Easttown Twp., 72 F. Supp. 2d 512,

515 (E.D. Pa. 1999), reversed, 248 F.3d 101 (3d Cir. 2001), in

arguing that zoning decisions linking aesthetics to property

values are acceptable and appropriate. The court there did say

that “decisions which link aesthetics to property values . . . are

acceptable.” However, the court’s analysis was driven by

traditional zoning considerations under Pennsylvania law. It

was not considering with the application of the TCA, nor that

federal statute’s impact on the considerations of land use that

are otherwise left to local regulation.12

The Township also cites to AT&T Wireless PCS, Inc. v.

Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307 (4th

Cir. 1999), in which a court of appeals reversed the district

court’s order granting AT&T’s application for a special use

12 One could forcefully argue that the erection of any telecommunications equipment would have an adverse impact on the aesthetics of any residential community. However, under the circumstances here, such an unforgiving and absolutist approach local to land use regulation would eviscerate the national policy of promoting the telecommunications industry that is endemic in the TCA.

54 permit to erect a 140 foot monopole despite the local zoning

authority’s rejection of that application. The substantial

evidence on the record supporting the denial there included a

mortgage banker’s testimony that the tower would adversely

affect the resale value of the homes surrounding it, and have a

negative impact on the aesthetics of the community where it

was planned. To that extent, it appears at first blush that the

Township’s focus on aesthetics does have some support in cases

applying the TCA. However, AT&T is easily distinguished.

In AT&T, the tower was to be erected on private property

that included a house that was listed on the National Register of

Historic Places, 172 F.3d at 310, and there was “no commercial

property in the neighborhood nor on the [subject] property.” Id.

Moreover, the setting was described as “a neighborhood of

‘excellent quality of life and . . tranquility[,]’” and “‘an

unspoiled serene tract of land in the midst of a bustling city.’”

Id. As the court noted, that testimony was offered “not by the

homeowners or others opposing the special use permit, but by

55 AT&T.” Id. There was more. Although AT&T argued that it

needed the tower to address a gap in its wireless service in the

city, it conceded that “this particular location was not necessary,

[and that] others would do.” Id. AT&T’s engineers admitted

that they could “co-locate on an existing tower, . . . [or] build

another monopole tower at another location;” and that either

option was satisfactory and would “preclude the necessity of

having a tower on [the subject] property” while “provid[ing] the

same level of service.” Id. at n1. That is simply not our case.

Given the circumstances here, the district court correctly

evaluated the generalized testimony regarding aesthetics, the

fact that the current use included a firehouse, and the need for

the specific location where Ogden/Sprint were attempting to

locate the communications tower.13

Third, the Township contends that the district court

13 We do not, of course, suggest that all testimony regarding aesthetics is irrelevant under the TCA. We do, however, reiterate that the generalized testimony about the impact on the aesthetics of the neighborhood on this record is not the “substantial evidence” required under the TCA.

56 misinterpreted and/or ignored testimony that clearly established

that Ogden’s property was not the only site that would remedy

Sprint’s problem. As noted, in Findings of Fact 5 and 6, the

Zoning Board found:

5. That a single 133 foot tower is not the only means by which Appellant could ameliorate or correct its alleged lack of adequate service in the area around the Ogden Fire Company.

6. That there exist other solutions to help ameliorate the alleged lack of service other than to erect a single 133 foot stand along WCF tower at Appellant’s location.

As we explained earlier, the district court held that the only

evidence supporting these findings was the testimony of Beck,

which we have recited above. The court found that testimony

insufficient to demonstrate that Sprint could solve its

communications problems by placing an antenna on another tall

structure or could build a tower elsewhere. The Township

claims that holding was in error. According to the Township,

the testimony of Poole, a radio frequency engineer who testified

for Sprint, demonstrated that Ogden’s property was not the only

57 site that could solve Sprint’s coverage problems. We disagree

with that summary of Poole’s testimony. Poole testified that

Sprint must have a tower on Ogden’s property to solve its

coverage problems even if it erected a tower somewhere else.

The district court summarized the relevant portions of Poole’s

testimony as follows:

Clement Poole . . testified regarding studies which he performed regarding Sprint's weak wireless telecommunications service in the area of Naamans Creek Road where the Ogden firehouse is located. These studies included testing PCS coverage at nearby tall towers to see if Sprint could solve its service problems by attaching an antenna to an existing tower. (N.T. Vol. 2 at 150-68.). He determined that the Ogden location was the best location. (Id. at 168.) Poole also concluded that if Sprint were not permitted to attach an antenna to the proposed tower, Sprint would have poor to no service in that area. (Id. at 176.) He further testified that the proposed height of Sprint's antenna on the proposed tower is the minimum height necessary to alleviate Sprint's coverage problems. (Id. at 177.)

Ogden I, at * 15.

Finally, the Township contends that Ogden/Sprint did

58 not produce any evidence in the application for a special

exception under Zoning Ordinance § 1706.2, see n.8, supra,

that the tower had to be 130 feet tall. In support of that claim,

the Township excerpts portions of the testimony of Ogden’s

Vice President Robinson. See Township’s Br. at 31. However,

the Township ignores Robinson’s testimony that 130 feet would

be less than the optimum height of 150 feet, but would be close

enough to fill Ogden’s needs. JA at 289. Moreover, the

Township completely ignores the fact that Poole stated that the

proposed height of 130 feet was the minimum height necessary

to fill Sprint’s coverage gap. JA at 313. Moreover, in its

submissions to the district court, the Township admitted that

Odgen’s “communications problems cannot be remedied

without the proposed Facility at the height requested.” JA at

50.19 (Township’s Motion for Summary Judgment, Facts

Established at the Hearings, ¶ 34).

Accordingly, we agree with the district court’s

conclusion that the Township’s rejection of the Ogden/Sprint

59 application is not supported by substantial evidence.

B. Did the Township Unreasonably Discriminate Among Providers of Functionally Equivalent Services?

As noted at the outset, Count I of Ogden/Sprint’s

complaint alleged that the Township’s rejection of their

application unreasonably discriminated among providers of

functionally equivalent services in violation of 47 U.S.C. §

332(c)(7)(B)(i)(I). The Township had previously approved an

application filed jointly by Reliance Hook and Ladder Co. No.

1 and Metro Phone. It had also previously approved an

application to build a telecommunications tower in an R-1

District filed by AT&T Wireless. The district court granted

summary judgment to Ogden/Sprint on that claim, finding that

the “Zoning Board unreasonably discriminated between the

Ogden/Sprint Application and the prior applications. . .”.

Ogden I, 2006 WL 851391 at *9. We agree.

(1). General legal principles

“The TCA does not prohibit all discrimination against

60 providers, only unreasonable discrimination.” Omnipoint

Commc’ns Enters., L.P. v. Zoning Hearing Bd. of Easttown

Twp., 331 F.3d 386, 395 (3d Cir. 2003) (citation omitted).

Section 332(c)(7)(B)(i)(I) of the TCA provides: “The regulation

of the placement, construction, and modification of personal

wireless service facilities by any State or local government or

instrumentality thereof . . . shall not unreasonably discriminate

among providers of functionally equivalent services[.]” The test

for unreasonable discrimination under the TCA consists of two

prongs. Nextel West Corp., 282 F.3d at 266. “[T]he first prong

asks whether the relevant providers are ‘functionally

equivalent.’” Id. (quoting 47 U.S.C. § 332(c)(7)(B)(i). This

inquiry focuses on “the telecommunications services the entity

provides, not on the technical particularities (design,

technology, or frequency) of its operations. Id. at 267 n.13. If

the providers are “functionally equivalent,” the “second prong

asks whether the governmental body ‘unreasonably

discriminate[d] among providers.’” Id. at 267 (quoting 47

61 U.S.C. § 332(c)(7)(B)(i)).

Relief under the discrimination provision “will require

a showing that the other provider is similarly situated, i.e., that

the structure, placement or cumulative impact’ of the existing

facilities makes them as or more intrusive than the proposed

facility.” ATP Pittsburgh Ltd P’ship v. Penn Twp., 196 F.3d

469, 480 n.7 (1999). “Discrimination may be impermissible

where a municipality favors one provider by permitting it to

locate in a particular area at the exclusion of others, thereby

creating unfair competitive advantage.” Nextel West Corp., 282

F.3d at 267.

(2). The Reliance/Metro Phone application

On April 1, 1992, the Zoning Board approved the joint

application that Reliance Hook and Ladder Co. No. 1 and

AWACS, Inc., d/b/a Metro Phone Co., submitted for a special

exception. That application had obvious similarities to the one

Ogden/Sprint submitted. The exception the Board granted there

allowed Metro Phone to install and operate radio

62 communications equipment in the basement of Reliance’s

firehouse and to construct a 180 foot high radio

communications tower with antennae in the rear of the

firehouse. Like Ogden, Reliance is located in an R-2 Residential

District.

In granting the special exception, the Zoning Board

made the following findings: (1) this use was an accessory use

to the fire company use and the tower was an accessory

structure to the firehouse building, thus requiring special

exceptions to use and height limitations; (2) the tower and

radio communications equipment would facilitate Metro

Phone’s cellular communications system, which had a dead spot

in the area of the tower; (3) a tower with a minimum height of

180 feet was required to provide proper coverage to the service

area; (4) the base of the 180 foot tower would be 20 feet in

diameter, tapering to 48 inches at the top; and, (5) the proposed

tower would provide Reliance with a back-up communications

system and, therefore, benefit Reliance’s volunteer firefighting

63 activities and provide 911 service for Metro Phone’s

subscribers.

The Zoning Board also found that the cellular phone

communication service was an accessory use to the volunteer

fire company and that the tower was an accessory use to the

firehouse because the fire company had to depend on radio

communications. The proposed cellular phone communication

service provided a back-up communication for Reliance and

911 service to the cellular subscribers, and allowed the county

to place its emergency service equipment on the proposed

tower. Accordingly, the Zoning Board granted the special

exception to Reliance/Metro Phone pursuant to Zoning

Ordinance § 1706.2. The application was approved prior to the

Township’s adoption of Ordinance No. 579.14

14 On November 17, 1997, the Township adopted Ordinance No. 579, which amended the Township Code to provide for the use, construction and siting of WCFs. Ordinance No. 579 amended § 303 of the Zoning Ordinance to permit “WCF with antenna attached to a nonresidential building or structure of a permitted church, educational, public, municipal or governmental building or facility” as a special

64 In granting summary judgment to Ogden/Sprint on

Count I, the district court concluded that Ogden would use the

radio tower in its capacity as an emergency responder. That use

would enhance Ogden’s existing radio communications and it

was therefore an “accessory use not a commercial use as the

Township claimed.” Ogden I, 2006 WL 851391 at *8. The

Township argued that the differential treatment afforded

Reliance/Metro Phone and Ogden/Sprint was not unreasonable

because the Reliance/Metro Phone application was approved

before Ordinance No. 579. That argument is a non sequitur,

and the district court properly rejected it because Ordinance No.

579 regulates the use, construction and siting of a WCF tower.

The ordinance has nothing to do with deciding whether a radio

tower is an accessory use to a firehouse. Moreover, rather than

complicating Ogden/Sprint’s request for an accessory use,

exception in R-2 Residential Districts. Zoning Ordinance § 303.7. Ogden/Sprint sought a special exception because the 15 foot height limitation imposed under § 1706.2 would otherwise have precluded erecting a 130 foot tower.

65 Ordinance No. 579 should have facilitated it. Thus, the

enactment of Ordinance No. 579 does not explain why the

Township rejected Ogden/Sprint’s application while approving

the application of Reliance/Metro Phone. Id. Here, the

Township repeats the argument that it made in the district court

about Ordinance No. 579. However, the argument is based on

the improper characterization of the application as one filed

solely by Sprint to construct a stand-alone WCF tower. The

district court’s holding that the Township could not rely upon

Ordinance No. 579 to justify the discrimination was correct.

The district court also rejected the Township’s attempt

to claim that the two applications were not functionally

equivalent because the proposed Ogden/Sprint tower would

have a greater impact on the surrounding community. The

Township argued that the area around the Reliance firehouse

when the Reliance/Metrophone application was approved was

very rural while the area around Ogden’s property is heavily

residential. The district court found to the contrary, noting:

66 [T]he aerial photographs submitted by the parties do not support [the Township’s] contention that the area around the Reliance firehouse was quite rural in 1990. To the contrary, those photographs show that the area around the Reliance firehouse contained a school and a sizeable residential community in 1990.

Id. The Township also repeats its reliance on the distinction

purportedly shown in the aerial photos here. However, our

review of those photographs is consistent with the findings of

the district court.

Accordingly, the district court correctly held that

Ogden/Sprint satisfied the first prong of the unreasonable

discrimination test by establishing that although Metro Phone,

like Sprint, is a provider of wireless communications services,

it was treated differently than Sprint.

The district court ruled that Ogden/Sprint satisfied the

second prong of the unreasonable discrimination test “by

demonstrating that the structure, placement or cumulative

impact of the existing Reliance/Metro Phone facility makes it

more intrusive than the proposed Ogden/Sprint tower.” Id.

67 The “Reliance/Metro Phone tower is both larger in diameter and

significantly taller than the proposed Ogden/Sprint tower and .

. . the neighborhoods are residential neighborhoods with

identical zoning.” Id.

On this record, the conclusion that the Zoning Board

unreasonably discriminated against the Ogden/Sprint

application compared to its earlier treatment of the

Reliance/Metro application is inescapable.

(3). The AT&T Wireless application

AT&T Wireless also provides wireless communication

services. On November 1, 2000, after Ordinance No. 579 was

adopted,15 the Zoning Board approved an application submitted

by AT&T Wireless. AT&T requested approval of a planned

180 foot monopole tower to be operated as a PCS cell tower

antenna on land owned by the Township in an R-1 Low Density

15 We stress the timing because of the Township’s attempt to suggest that the enactment of Ordinance 579 somehow justifies the disparate treatment afforded the Reliance/Metro application.

68 Residential District.

The Zoning Board approved AT&T’s application for a

stand-alone WCF after concluding that it was compatible with

the character of the surrounding neighborhood and in the best

interest of the Township, convenience of the community and the

public health, safety and welfare. The Zoning Board also

concluded that allowing this special exception would not

adversely affect the public health, safety and welfare and would

be in accordance with the Upper Chichester Comprehensive

Plan.

In granting summary judgment to Ogden/Sprint, the

district court observed that the Township had submitted no

evidence to justify denying Ogden/Sprint’s application while

approving AT&T’s application. Accordingly, the court held

that Ogden/Sprint met the first prong of the unreasonable

discrimination test by showing that it and AT&T are

functionally equivalent providers. Id. The court also held that

Ogden/Spring met the second prong of the unreasonable

69 discrimination test “with respect to the AT&T application by

demonstrating that the AT&T tower is more intrusive than the

proposed Ogden/Sprint tower because the AT&T tower is 47

feet higher than the proposed Ogden/Sprint tower.” Id.

Although there are some differences between the

placement of the two towers (the Ogden/Sprint in a R-2 zone,

and the AT&T in a R-1 zone), since the AT&T pole is much

higher than the proposed Ogden/Sprint pole, and given the

Zoning Board’s complete failure to explain why it was willing

to ignore Ordinance 579 when granting AT&T approval, the

approval of the AT&T application further supports

Ogden/Sprint’s claim of unreasonable discrimination.

V. TOWNSHIP’S APPEAL NO. 07-1694

As recited at the outset, after the district court granted

summary judgment to Ogden and Sprint on their claims under

the TCA, the Zoning Board granted the special exceptions

Ogden and Sprint were requesting. However, the Township’s

building inspector thereafter refused to give Ogden/Sprint the

70 building permit that was purportedly required before they could

construct the monopole. The denial was based upon the

building inspector’s determination that the lease of the relevant

portion of Ogden’s rear yard to Sprint for construction of the

tower constituted a division or allocation of land by means of a

leasehold. That, in turn, purportedly required the approval of a

Subdivision and Land Development Application pursuant to the

Township’s Subdivision and Land Development Ordinance and

Section 107(a) of the Pennsylvania Municipalities Planning

Code (“MPC”).

Apparently not feeling particularly upbeat about again

trying to survive this administrative gauntlet or their chances of

getting past the building inspector, Ogden/Sprint returned to

district court rather than attempt to negotiate the bureaucratic

rapids cascading between the Zoning Board and the final

completion of the project. They asked the court to compel the

issuance of a building permit. Since nothing in the record

supported the Township’s denial of a Subdivision and Land

71 Development Application or the issuance of a building permit,

the district court ordered the Township to issue the appropriate

permits for the building of the radio tower and related radio

equipment, and the Township appealed.

A. DISCUSSION

The Township’s first argument is that the district court’s

order compelling it to issue all necessary approvals and permits

for the building of the tower, impermissibly expanded the scope

of its March 30, 2006 order granting summary judgment to

Ogden/Sprint and ordering the Township to issue zoning

permits for the tower. As we understand the Township’s

argument, the Township is claiming that although the TCA

places limits on a local governmental unit’s zoning authority,

(i.e., its authority to regulate use of land), the TCA has nothing

to do with a local governmental unit’s subdivision authority,

i.e., its authority to regulate land development. Accordingly,

the Township argues that the district court improperly intruded

into an area that is strictly a matter of local law in ordering

72 building permits for the tower. Thus, the Township claims that

Ogden/Sprint must submit an application for subdivision/land

development approval before it can go forward with its project

even if the district court was correct in ordering the Township

to issue the zoning approvals.

The argument is unavailing. It would allow an end run

around the requirements of the TCA and thereby allow local

regulatory agencies to subvert a federal policy by elevating

zoning authority over congressional policy as enacted into law

via the TCA. In City of Rancho Palos Verdes v. Abrams, 544

U.S. 113 (2005), the Supreme Court explained that

Congress enacted the Telecommunications Act of 1996 (TCA), to promote competition and higher quality in American telecommunications services and to “encourage the rapid deployment of new telecommunications technologies.” One of the means by which it sought to accomplish these goals was reduction of the impediments imposed by local governments upon the installation of facilities for wireless communications, such as antenna towers. To this end, the TCA amended the Communications Act of 1934, to include § 332(c)(7), which imposes specific limitations on the traditional authority of state and local

73 governments to regulate the location, construction, and modification of such facilities.

Id. at 115-16 (citations omitted). The Township’s position, if

sustained, would be fatal to telecommunication carriers

attempting to build facilities in localities that did not want to

allow it. It would merely shift the battle from the zoning agency

to another agency charged with subdivision approval whenever

the relationship between the carrier and the owner of the

affected land could be viewed as falling under the jurisdiction

of the latter agency. It would then remove the reach and

protection of the TCA from the telecommunications provider

and place the provider at the mercy of local regulators. Even if

the local jurisdiction ultimately granted approval, the attendant

delay, expense and uncertainty could adversely impact the

provider’s attempt to construct telecommunications facilities

and subvert the national policy favoring it.16

16 We note that the TCA expressly commands that any court hearing an action filed by a person adversely affected by a decision of a state or local governmental agency that is inconsistent with the TCA is to “hear and decide such action on

74 Indeed, the Township here is not arguing that

Ogden/Sprint would not or should not ultimately obtain

subdivision approval. Rather, the Township appears simply to

want Ogden/Sprint to jump through the prescribed hurdles on

its way to ultimate approval. However, as Ogden/Sprint note,

it would be a pointless exercise to submit a subdivision

application now because the district court has already

determined, as a matter of federal law, that the Township must

permit the tower to be built on Ogden’s property. We conclude

that the court properly ordered the issuance of the building

permits as a supplemental remedy to the Township’s violation

of the TCA. See Omnipoint Corp. v. Zoning Hearing Board of

Pine Grove Township, 20 F. Supp. 2d 875 (E.D. Pa. 1998)

(“Pine Grove I”), aff’d 181 F.3d 403 (“Pine Grove II”).17

an expedited basis.” 47 U.S.C. § 332(c)(7)(B)(v). Congress has thus recognized the need to avoid costly and unnecessary delays during the approval process before local agencies. 17 In Pine Grove I, the district court found the zoning board’s denial of a special exception for a wireless communications facility was in violation of the TCA. It

75 The Township also argues that because subdivision

issues are matters solely of state law, we must abstain pursuant

to Burford v. Sun Oil Co., 319 U.S. 315 (1943).18 This

argument borders on frivolity and requires only the briefest

discussion. “Burford abstention is appropriate where a difficult

question of state law is presented which involves important

state policies or administrative concerns.” Heritage Farms, Inc.

v. Solebury Twp, 671 F.2d 743, 746 (3d Cir. 1982) (citation

omitted). However, there is no difficult question of state law

here. Rather, the controlling issue is one of federal law. The

issue is whether the denial of the building permits violates the

TCA. We agree with the district court’s conclusion that it does.

considered remanding for further administrative proceedings, but concluded that doing so “would frustrate the TCA’s intent to provide aggrieved parties full relief on an expedited basis.” 20 F. Supp.2d at 881. Accordingly, it ordered the following relief: “The Zoning Officer of Pine Grove Township is hereby ORDERED to issue all necessary zoning and building permits upon payment of any outstanding fees.” Id. at 882 (emphasis added). We affirmed. 181 F.3d at 410. 18 The Township did not ask the district court to abstain under Burford.

76 One matter remains. As recited, the district court noted

that, under Pennsylvania law, leases that allocate land, as

opposed to assigning positions on a pole or tower, constitute a

subdivision or allocation of land in accordance with § 107(a) of

the MPC. Ogden II, 2007 WL 137848 at *2 (citing Upper

Southampton Twp. v. Upper Southampton Twp. Zoning

Hearing Bd., 885 A.2d 85, 92 (Pa. Commw. Ct. 2005), appeal

granted, 895 A.2d 1265 (Pa. 2006)). Ogden/Sprint contend that

it is not all that clear that Pennsylvania law would require

subdivision approval even in the absence of the TCA. They

argue that since the Pennsylvania Supreme Court has granted

leave to appeal the decision in Upper Southampton, there is not

yet a definitive ruling on that issue under Pennsylvania law.19

19 Ogden/Sprint also distinguish Upper Southampton by stressing that the Commonwealth Court was there concerned with interests in a billboard. They suggest the rationale would not apply here because (1) Ogden will occupy both the firehouse and the tower, and (2) the tower is an accessory use to the firehouse, not a separate business use. See Ogden/Sprint Supplemental Br. at 11 (citing 885 A.2d at 88).

77 However, we need not resolve that issue because our inquiry is

limited to whether the district court’s order requiring the

Township to issue building permits for the tower is appropriate

supplemental and additional relief under federal law for a

violation of the TCA. We hold that it is.

VI. CONCLUSION

For all of the above reasons, the district court’s order of

March 30, 2006, ordering the Township to issue all required

zoning permits and variances, and the order of February 15,

2007, ordering the issuance of any required Building Permits

will be affirmed.