Court Rules Against Zoning Board in Pennsylvania Tower Dispute

Court Rules Against Zoning Board in Pennsylvania Tower Dispute

A ruling in the United States District Court for the Eastern District of Pennsylvania has cleared the way for the case of Liberty Towers, LLC v. Zoning Hearing Board of the Township of Lower Makefield to proceed to trial.

Washington, DC-based Liberty Towers acquires, constructs, and manages wireless communication towers and site locations. Mobile phone providers then lease space on towers and sites to operate their transmission equipment.

T-Mobile and Sprint would employ Liberty’s proposed tower site in Lower Makefield to fill cellular telephone service coverage gaps. Liberty entered a lease agreement with the Brookside Swim Club to use a portion of their land for the tower site.

Such agreements are often financially beneficial for property owners because monthly lease rates can range from several hundred dollars to several thousand dollars.

Zoning Hearing Board

Liberty had requested a variance in order to construct the tower in September 2009.

One of the citizens opposing the variance, Nathan Edelstein, is an attorney specializing in cell tower construction opposition. According to meeting minutes, Edelstein questioned the need for the tower, whereas general citizen opposition to the construction has been based on aesthetics and property values.

Although health concerns about radio frequency emissions (RFEs) from cell towers were also raised, the township recognized those concerns are preempted by Federal Communications Commission regulations for RFEs, which would allow building of the tower.

Regardless, the zoning board denied Liberty the variation.

Defendants Harshly Rebuked

Liberty subsequently brought suit in U.S. District Court for the Eastern District of Pennsylvania, arguing the denial violates the Telecommunications Act of 1996 (TCA).

In response, the township, Mr. Edelstein, and Ms. Templeton, one of the more vocal opponents in the ZHB meetings, moved to dismiss the appeal. They argued Liberty lacks standing to sue under the TCA and the court lacks jurisdiction “because the claims do not present a case or controversy under Article III of the United States Constitution.”

The court dismissed all the defendants’ motions, allowing the lawsuit to continue.

The court wrote: “While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations.”

Citing the 1984 case Chevron USA v. National Resource Defense Council, the court wrote, “Liberty Towers argues, and this Court agrees, that under well-established principles of administrative law, the FCC’s Declaratory Ruling is entitled to deference from the federal courts.”

It concluded: “According to the FCC’s 13 interpretation, a provider must plead that there is a significant gap in service in any area for that particular service provider. Thus, this Court finds that Plaintiff has properly pled that there is a significant gap in service in the Lower Makefield Township area.”

Jason Gilman Jr. (mackdaddydiesel@gmail.com) writes from Lansing, Michigan.

Internet Resources:

Liberty FCC Antenna Structure Registration: http://wireless2.fcc.gov/UlsApp/AsrSearch/asrRegistration.jsp?regKey=2669910

Township of Lower Makefield Code Book: http://www.ecode360.com/?custId=LO1561

Lower Makefield Zoning Hearing Board Meeting Minutes: http://www.lmt.org/zhb.htm

Court Ruling on Motions to Dismiss: www.paed.uscourts.gov/documents/opinions/10d1017p.pdf

Section 332 of the Telecommunications Act:  http://www.law.cornell.edu/uscode/47/usc_sec_47_00000332----000-.html