Pa. Cell Tower Permit Denial Reversed; Court Cites Similar Prior Tower Approvals

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By Eric Topor

The U.S. District Court for the Middle District of Pennsylvania Sept. 14 reversed a local zoning board's denial for a special use permit to construct a cell phone tower on leased land because of disparate treatment between the developer's project and two nearby similar towers (Global Tower LLC v. Hamilton Township , M.D. Pa., No. 3:10-cv-01705-ARC, 9/14/12).

Cellular tower developer Global Tower LLC challenged the Hamilton Township zoning board's denial of a special use permit to construct a 250-foot tower as a violation of the Telecommunications Act of 1996 47 U.S.C. § 332(c)(7)(B) (TCA). Hamilton claimed it relied on evidence from an appraiser that surrounding property values would suffer, and that the proposed tower did not satisfy a number of zoning requirements for commercial developments on a separate lot.

Judge A. Richard Caputo agreed with an earlier magistrate judge recommendation to grant Global Tower summary judgment, and said it was clear that Global Tower's project was treated in a discriminatory fashion when compared to the two nearby towers of similar dimensions and use. Further, Caputo said under state zoning law, it was incumbent on the township to demonstrate that the project would negatively impact the health and safety of the public, a burden the zoning board improperly shifted onto Global Tower.

Town Cited Property Value Diminution, Safety Issues.

Global Tower leased a 100-foot square section of land in a 30-acre parcel in December 2008, and sought a special use permit to construct a cellular tower in the leased area. The property was zoned for commercial use, and permitted radio and television towers as a special use. The tower was to be 250 feet tall, secured by a fence, and accessed via a gravel road already on the property.

Hamilton Township already had approved two other similar towers in 2000 and 1996. Those towers were 250 and 280 feet in height, both were visible above the tree line, and both were also constructed on relatively small leased pieces of land within a much larger rural parcel.

Following 20 hearings, the township's zoning board denied Global Tower's application, citing disputed evidence from an appraiser that the tower would lower surrounding property values $10,000 on average. The board also deemed the proposal a new “lot,” and consequently said the tower violated fencing setback and roadway requirements. In addition, the board said the tower would be a safety hazard because emergency personnel would have trouble accessing the locked facility, though Global Tower offered to provide emergency responders with keys in advance.

‘Substantial Evidence' Lacking in Value Argument.

Global Tower filed suit in August 2010, and moved for summary judgment. The township also moved for summary judgment, arguing that its decision cited substantial evidence, as required under the TCA for denial of a cellular tower special use application.

A magistrate judge recommended granting Global Tower's motion on the grounds that there was clear discriminatory treatment against Global Tower's project, and the evidence the township used in support of its decision was not credible.

The court agreed with the magistrate judge's recommendation, and noted that the board impermissibly shifted the burden of proof to Global Tower. Caputo said that under state law, special use permits were to be presumptively granted unless an objector can show, “with a high degree of probability,” that the proposed use presented a danger to public health and safety.

Caputo noted that concerns of aesthetics or diminution in value had no bearing on public safety arguments, and the board could not rely on such evidence to deny Global Tower's permit. “[I]t is clear that the Board incorrectly required Global [Tower] to prove that property values would not be impaired, instead of requiring the objectors demonstrate” public health or safety concern. Caputo also noted that the board failed to rebut flaws in the objector appraiser's methodology brought to light in hearings.

Discriminatory Treatment Clear.

The court also found impermissible discriminatory treatment between Global Tower's project and the two previously approved and constructed towers. The magistrate judge said all three towers were functionally and physically the same, a conclusion Caputo agreed with.

The township claimed that the leased area was a separate “lot,” under the Municipalities Planning Code (53 Pa. Stat. Ann §§ 10101–11202 (Doc. 41, 12)) and consequently needed to conform to land development regulations. But the court said recent state supreme court precedent (Upper Southampton Twp. v. Upper Southampton Twp. Zoning Hearing Bd., 594 Pa. 58, 60, 934 A.2d 1162 (2007)) defined “land development” as pertaining to commercial and residential buildings. Captuo said the requirements for land development in the act were not applicable to a cellular tower.

In addition, the board's recitation of fencing, safe access, visual screening, and road concerns were all largely identical to the two existing towers, yet the board claimed no discriminatory intent because it claimed there was no evidence presented in opposition to those projects, unlike the Global Tower project. The court said Global Tower sufficiently showed it was similarly situated to the two existing tower projects, and was treated differently, a violation of the TCA.