Case Reinforces That Burden of Proof Falls on Objectors of Cell Towers

March 2013Articles In the Zone

In the case of Global Tower, LLC v. Hamilton Township, 2012 WL 4061190 (Sept. 14, 2012), Global Tower, LLC (Global) entered into a lease agreement with the owners of a 30-acre tract of land (Property) to allow Global to erect a 250-foot radio tower and install related equipment (collectively, the Tower) inside a 100 by 100 foot lease area (Lease Area). The Property is in the C Zoning District of Hamilton Township, Pennsylvania, which permits radio and television transmission or receiving towers as a “special use” or special exception. As such, Global filed an application with the Hamilton Township Zoning Hearing Board (ZHB) seeking “special use” approval to construct the Tower within the Lease Area. Twenty hearings were held on Global’s application and, at the conclusion of the hearings, Global and the underlying property owners agreed to the imposition of a number of restrictions on the application in an attempt to alleviate the concerns of the objectors raised during the hearings. Nevertheless, the ZHB denied Global’s application.

In denying Global’s application, the ZHB concluded that the Lease Area constituted a new “lot,” which required Global to comply with the bulk regulation requirements of the Zoning Ordinance. Because Global did not apply for a variance from these sections of the Zoning Ordinance, the ZHB found that Global’s submission failed to comply with the Zoning Ordinance.

Global appealed the ZHB’s decision to the U.S. District Court for the Middle District of Pennsylvania, arguing that the ZHB improperly denied its application in violation of the federal Telecommunications Act of 1996 (TCA). Both the ZHB and Global filed motions for summary judgment, which motions were referred to a Magistrate Judge for a report and recommendation. The Magistrate recommended that Global’s motion for summary judgment be granted and the ZHB’s motion be denied.

The ZHB first argued that there was substantial evidence to support its decision that Global failed to satisfy its burden regarding the Zoning Ordinance’s special use requirements. Second, the ZHB argued that Global failed to demonstrate that it had been unreasonably discriminated against in the denial of its application. Global, on the other hand, argued that the rejection of the Tower, after two nearly identical towers had been previously approved in the Township, constituted unreasonable discrimination and further argued that the ZHB’s decision was not supported by substantial evidence. Global’s argument was based on the fact that the ZHB had previously approved two other radio towers in the township.

The court pointed to the pertinent sections of the TCA and noted that, while the TCA preserved the traditional authority enjoyed by state and local governments to regulate land use and zoning, the TCA altered the traditional deference in several important ways. The TCA states that nothing in the Act is intended to limit or affect the authority of the state or local government over decisions regarding the placement, construction and modification of personal wireless services facilities. However, the regulation of the placement, construction and modification of personal wireless service facilities by any state or local government (1) shall not unreasonably discriminate among providers of functionally equivalent services and (2) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. In addition, the TCA provides that any decision by a state or local government to deny a request to place, construct or modify personal wireless service facilities shall be in writing and shall be supported by substantial evidence contained in a written record. Therefore, the court noted that denials subject to the TCA are reviewed by the court more closely than standard local zoning decisions.

The Magistrate determined, and the court agreed, that the ZHB failed to require the objectors to establish with a high probability the diminution in property values that Global’s Tower would cause. The court agreed with the Magistrate that neither aesthetic reasons, nor the conservation of property values, nor the stabilization of economic values in a township are, singly, or combined, sufficient to promote the health, morals, safety or general welfare of the township or its residents. Parties in opposition to a special exception cannot sustain their burden of proof by merely introducing evidence that their property values may decrease; rather, they must show a high degree of probability that it will substantially affect the health and safety of the community. The court found that the ZHB improperly applied the burden of proof in requiring that Global prove that property values would not be impaired, rather than requiring the objectors to demonstrate by a high probability that the Tower would pose a negative impact on the safety and welfare of the community. The court noted that ZHB improperly reviewed the evidence to highlight the deficiencies in Global’s case as opposed to examining the sufficiency of the evidence offered by the objectors.

The court also noted that, even if ZNB had properly applied the burden of proof, the objectors failed to establish their objections with a high degree of probability. The court agreed with the Magistrate that there was no evidence of record to prove that Global’s Tower differed from the impact correlated with other uses allowed within the C zoning district, such as multifamily residential use, commercial use or industrial use. As such, the court agreed with Global that there was no substantial evidence of record to support the ZHB’s decision denying the application.

With respect to the discrimination claim under the TCA, the court noted that in order to preserve the ability of local governments and zoning boards to take into account the uniqueness of land, the TCA explicitly contemplates that some discrimination is permitted and any discrimination need only be reasonable. Relief under the TCA’s discrimination provision requires a showing that the other provider is similarly situated, such that the structure, placement or cumulative impact of the existing facilities makes them as or more intrusive than the proposed facility.

In support of its claim, Global provided a chart comparing and contrasting the similarities and differences between Global’s proposed Tower and the two previously approved towers to show that they are similar in structure, placement and cumulative impact. The Magistrate concluded that the evidence failed to form a reasonable basis for the ZHB to treat the three towers differently. The court agreed with the Magistrate and found that Global convincingly established that it was similarly situated to the previous two tower applicants in the Township.

Interestingly, in making its decision on the discrimination claim, the court also determined that the lease did not constitute land development or create a new lot that would trigger the application of the bulk regulation requirements of the Zoning Ordinance. The court noted that the mere fact that Global entered into the lease agreement in order to construct the Tower, by itself, did not qualify as land development for purposes of the Pennsylvania Municipalities Planning Code. Further, the court agreed with the Magistrate who determined that Global’s proposal did not involve the type of extensive development that impacts the community in terms of use of sewer capacity, traffic ingress and egress and parking concerns. Therefore, the court found that the lease did not constitute land development or create a new lot, which would trigger the application of the bulk regulation requirements. For this reason, failure to comply with these requirements did not justify the basis for the ZHB’s denial of the application.

This case will prove useful for cell tower companies in that it reinforces the fact that the burden of proof is on the objectors to a special exception application to prove that the proposed use will create a degree of impact that would be abnormal for a cell tower use, a standard difficult to prove. In addition, it notes that zoning decisions involving the TCA will be more closely scrutinized by the court.