Cell Tower Companies Face a Heavy Burden of Proof To Succeed in a Validity Challenge to a Zoning Ordinance

September 2013Articles In the Zone

The zoning process for the construction of new cellular telecommunications towers is highly controversial and often times cell tower companies find themselves fighting an uphill battle against a municipality and local residents to obtain the necessary zoning approvals. On occasion, each strategic decision in the zoning approval process to build a cellular telecommunications tower is comparable to a key at bat in the late innings of a playoff game between the Red Sox and the Yankees.

One of the strategies available to cell tower companies, in the event they do not obtain the necessary relief at the outset from the zoning hearing board, is to file a validity challenge to a municipality’s zoning ordinance asserting that a zoning ordinance is de facto exclusionary and in violation of the Federal Telecommunications Act of 1996 (Telecommunications Act). Specifically, Section 332 of the Telecommunications Act provides that municipalities retain the power to regulate the zoning and placement of cellular telecommunications facilities; however, Section 332 also provides that the regulation of construction, placement or modification of a cellular facility may not operate so as to prohibit the provision of personal wireless services.

However, as evidenced by a recent Pennsylvania Commonwealth Court case, it is imperative for cell tower companies to prepare their expert witnesses and have a proactive strategy for a validity challenge to a zoning ordinance. Otherwise, similar to a baseball starting pitcher who gets knocked out of the game in the early innings after not practicing between starts, a cell tower company can spend a significant amount of time and money in seeking to obtain the zoning approvals to build a cell tower with little or no success.

There are several strategic lessons that a cell tower company can learn from the recent Pennsylvania Commonwealth Court case of Wireless Development Group, LLC vs. Penn Township to enhance the chances that a cell tower company will succeed in its validity challenge to a municipality’s zoning ordinance. Wireless Development Group, LLC (WDG) appealed the Court of Common Pleas prior denial of WDG’s validity challenge to Penn Township’s Zoning Ordinance as it applies to the placement of cellular telecommunications towers. Specifically, WDG argued that Penn Township’s Zoning Ordinance was de facto exclusionary of cellular towers and was a violation of the Federal Telecommunications Act of 1996 because of a significant gap in cellular coverage.

By way of background, WDG filed an application with the Penn Township Zoning Hearing Board (ZHB) to construct a 275-foot cellular telecommunications tower (Tower) on a property where a single-family dwelling was located (Proposed Site) in the M Planned Light Industrial Zoning District (M District). In addition to seeking conditional use approval for the Tower, WDG also sought variances from the following zoning ordinance requirements: (i) the 200-foot cap on the height of cellulartelecommunications towers; (ii) the buffer from property lines equal to the radius of the height of the Tower; and (iii) the minimum lot size to be equal in width and depth to the height of the Tower (collectively, the Variances).

WDG sought to establish through the initial zoning hearings WDG’s right to obtain the conditional use approval and the Variances through testimony of several radio frequency engineers regarding the height necessary for the cellular tower and the lack of cellular service in the applicable portion of Penn Township. Furthermore, WDG’s legal counsel testified about WDG’s unsuccessful attempts to lease or purchase the Sprang Property (a potential alternate property on which to construct the Tower). The general counsel for Sprang also testified that his company was unable to reach an agreement with companies wishing to lease only part of the Sprang Property for construction of cellular towers because Sprang’s primary concern was selling the Sprang Property for commercial and residential development.

Unfortunately for WDG at the second hearing held by the ZHB on WDG’s validity challenge, the general counsel for Sprang changed his testimony and asserted that, once the details of a gas lease had been finalized and other portions of the Sprang Property sold, he believed that Sprang would be willing to lease part of the remaining property for a cellular telecommunications tower.

In Wireless Development Group, LLC vs. Penn Township, the Court denied WDG’s validity challenge because the Penn Township Zoning Ordinance did not effectively prohibit cellular telecommunications towers, as WDG failed to show that all other properties in the M District were unsuitable for the Tower. Specifically, WDG failed to evaluate the potential suitability of four other properties for the Tower as identified by a land use administrator for Penn Township. In addition, WDG’s radio frequency engineer admitted he did not examine all of such additional properties to determine whether these alternate properties could satisfy the gaps in coverage with which WDG was concerned.

This case highlights the heavy burden that cell tower companies need to satisfy to be successful in a validity challenge to a municipal zoning ordinance to establish that a zoning ordinance is de facto exclusionary and in violation of the Telecommunications Act. Furthermore, this case illustrates it is a fatal mistake for a cell tower company to assert a validity challenge unless the cell tower company can establish through site acquisition due diligence documentation and expert testimony there are no properties in the applicable zoning district that are feasible for placement of a cellular tower to resolve the gap in coverage.

I am rooting for the cell tower companies to succeed in their validity challenges to municipal zoning ordinances, as I am interested in watching streaming video of the Red Sox on my smart phone as the Red Sox hopefully advance towards the World Series.

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