A federal appeals court has ruled that the Telecommunications Act (TCA) strictly limits the powers of local zoning boards to regulate the placement of cell towers.

In Cellco Partnership v. the White Deer Township, the Third Circuit Court of Appeals ruled in favor of Verizon Wireless which had filed an application to construction a cell tower to remedy a gap in Verizon’s wireless coverage along Interstate 80.

“In the TCA, Congress preserved local zoning authority only up to a point,” the three-judge panel wrote.

A municipality’s zoning decisions are preempted by the TCA, the court said, when its decision would “prohibit or have the effect of prohibiting the provision of personal wireless services.”

This application requested seven variances due to the proposed cell tower’s failure to comply with the minimum lot size, setbacks from lot lines and other requirements under the Township’s Zoning Ordinance.  The Township’s ZHB denied the relief and Verizon commenced legal action under the Telecommunications Act (TCA).

The District Court granted summary judgment in favor of Verizon because the ZHB’s decision had” the effect of prohibiting the provision of personal wireless services.”  After discussing a number of cases under the TCA, the Circuit Court held the following:

• The provider established that the proposed cell phone tower would fill the coverage gap in the manner “leased intrusive on the values that the denials sought to serve.”
• Court adopted the “materially inhibits” standard for considering whether a zoning decision has the effect of prohibiting the provision of personal wireless services within the TCA.
• ZHB’s denial of the requested variances materially inhibited the ability of provider to compete in a fair and balanced legal and regulatory market.

In addition to providing the “green light” for the construction of the proposed cell tower, the case provides a good summary of the law under the TCA for the construction of cell towers that are in violation of a local municipality’s zoning ordinance.

For more information about this case or questions about zoning and land use approvals for new cell towers and other improvements, contact Rob Gundlach at rgundlach@foxrothschild.com or 215.918.3636.