Horvath Towers III, LLC v. Zoning Hearing Board of Butler Township
Docket: CIVIL ACTION NO. 3:16-0029
Court: District Court, M.D. Pennsylvania; March 29, 2017; Federal District Court
A motion for summary judgment has been filed by the Zoning Hearing Board of Butler Township, which has been granted, while a cross-motion by plaintiff Horvath Towers III, LLC has been denied. Horvath, engaged in leasing land for constructing radio towers for wireless communication providers, entered a land lease in August 2015 for property in the R-1 Low Density Residential Zoning District. Horvath aimed to build a 199-foot monopole tower to be subleased to Limitless Wireless. The Board, created under the Pennsylvania Municipalities Planning Code, denied Horvath's building and zoning permit application submitted in June 2015. Horvath appealed this denial, seeking a special exception under Section 509 of the Butler Township Zoning Ordinance of 1997, which allows uses not specified in the ordinance to be permitted by special exception if they do not constitute a public or private nuisance and comply with reasonable restrictions for public health and safety. Section 509 was added to the ordinance in 2010, and Section 803.3 applies to it, as it qualifies for a special exception.
Section 803.3 outlines seven conditions for the Board's approval of special exceptions under the Ordinance, emphasizing that such use must not negatively impact the zoning district's character, property values, or the health and safety of nearby residents. In the R-1 District, where Horvath proposed to build a tower, Section 403 does not explicitly permit wireless communication facilities, although Section 403.1(d) allows public uses by the Municipality. Horvath's application, submitted under Section 509, contended that the tower could qualify as a special exception akin to the permitted uses noted.
Public hearings were held on July 29, August 26, and October 14, 2015, where both supporters and objectors of the application presented testimony. Supporters included a radiofrequency engineer, a professional engineer, a real estate appraiser, and a site acquisition consultant, while objectors included local residents and another appraiser. Testimony highlighted the necessity for the tower for radiofrequency coverage, and supporters argued that the proposed tower would resemble existing municipality-owned towers in other counties. However, all examples provided were from outside Schuylkill County.
Evidence was also presented regarding the potential impact of the tower on property values. Horvath claimed that the project would meet the seven criteria for special exceptions outlined in Section 803.3, supported by a written analysis from the appraiser, Mr. Doyle. In contrast, the object's appraiser, Mr. Barket, did not prepare a written report or a specific study to substantiate his claim that the tower would negatively affect property values. After reviewing the findings of fact and conclusions of law submitted by both parties, the Board issued a decision on December 9, 2015, denying Horvath's request for a special exception.
The Board denied Horvath’s application for a special exception under Section 509, concluding that the proposed use was dissimilar to existing uses in Butler Township. It noted that while similar facilities exist in Pennsylvania, none were found in Schuylkill County or specifically Butler Township, citing a lack of evidence regarding the characteristics and zoning of these facilities. The Board determined that Horvath's proposed tower might be suitable for the Light Industrial District but did not meet the criteria for special exceptions in the R-1 District as outlined in Section 803.3 of the Ordinance. The Board identified several concerns, including potential adverse effects on neighborhood character and property values, lack of adequate safeguards, incompatibility with the Ordinance’s intent, risks to children, potential traffic issues during construction, and conflicts with development directions. The Board found that resident objectors sufficiently demonstrated negative impacts on health, safety, and welfare, which Horvath failed to rebut. Horvath is challenging this secondary finding while the Board maintains its primary conclusion. Subsequently, Horvath filed a complaint alleging violations of the Telecommunications Act of 1996 and appealed the Board’s decision on state law grounds.
On March 16, 2016, the state land use appeal was stayed pending the resolution of an action in court. The Board filed a motion for summary judgment on June 24, 2016, accompanied by supporting documents. On June 27, 2016, the Board submitted a Return of Record detailing the underlying zoning proceedings, while Horvath filed a cross-motion for summary judgment along with supporting materials. On July 18, 2016, the Board opposed Horvath's cross-motion, and Horvath responded to the Board's initial motion. Horvath did not respond to the Board's statement of facts.
The standard of review under Rule 56 permits summary judgment if no genuine dispute exists regarding material facts, with the movant entitled to judgment as a matter of law. Materiality is determined by substantive law, and genuine disputes must be supported by specific evidence. The nonmoving party cannot rely solely on allegations. The court must view facts favorably toward the nonmoving party without assessing credibility or weighing evidence.
The case involves evaluating whether the Board's decision adhered to the substantial evidence requirement under the Telecommunications Act (TCA) and Pennsylvania law, examining potential abuse of discretion or legal errors. The TCA aims to foster a competitive telecommunications market while preserving local zoning authority for wireless service facilities.
The Telecommunications Act (TCA) imposes procedural and substantive restrictions on state and local government decisions regarding personal wireless service facilities. Procedurally, any denial of requests to place, construct, or modify such facilities must be in writing and backed by substantial evidence. Substantively, governments cannot unreasonably discriminate among providers of functionally equivalent services. Horvath's claims under the TCA rely on these provisions, allowing any adversely affected individual to sue if local actions violate TCA safeguards.
Court rulings support that non-providers, like Horvath, can sue under the TCA. The Board's decision negatively impacted Horvath’s plan to lease land for wireless services. Horvath contends the Board's decision lacked substantial evidence, particularly regarding its conclusion on the tower's compliance with local ordinance requirements. Although the Board acknowledged a potential legal error in burden placement, it maintained that its primary finding—regarding the tower's dissimilarity to allowed uses—was sufficiently supported by evidence.
The court concluded that the Board’s primary finding met the substantial evidence requirement of the TCA. Substantial evidence does not equate to a large amount of evidence but rather to evidence that a reasonable mind would accept as adequate to support a conclusion, as defined by relevant legal standards.
A court applying the substantial evidence standard does not weigh the evidence or substitute its conclusions but evaluates whether substantial evidence supports the challenged decision. This standard requires more than a trivial amount of evidence but less than a preponderance. In cases with conflicting evidence, the fact-finder must explain any reasons for rejecting competent evidence. In this instance, the Board's denial of Horvath’s application was supported by substantial evidence, including its finding that the proposed tower did not align with uses listed in Section 403 of the Ordinance. The Board correctly placed the burden on Horvath to demonstrate compliance with the special exception requirements under Section 509.
A special exception in zoning ordinances allows for conditional use if specific conditions are met, governed by the ordinance itself. Such exceptions are presumptively appropriate for the zoning district and consistent with public health, safety, and welfare, granted upon the applicant meeting the ordinance's criteria. While legislative bodies cannot foresee every possible land use, savings clauses permit uses similar to those already allowed. Applicants must fulfill the requirements of the savings clause to gain the presumption of appropriateness, after which the burden shifts to objectors to prove non-compliance with general requirements. Horvath’s application fell under Section 609, a savings clause allowing special exceptions for similar permitted uses. The ordinance also contains a specific analysis for special exceptions in Section 803.3.
Horvath's application for a 199-foot tower relied on the assertion that it might qualify as a special exception under Section 606 by being similar to permitted uses in the R-1 District, particularly those outlined in Section 403.1(d), which includes public uses and structures operated by municipalities. Horvath compared the proposed tower to communication towers used for emergency services or cellular towers leased by municipalities. During a hearing on July 29, 2015, Ms. Baker, a site acquisition specialist, testified that the proposed tower's use would resemble that of existing municipality-owned towers, though she did not provide specific details about these towers or their prevalence in Pennsylvania or Schuylkill County. She acknowledged the existence of an existing Service Electric tower nearby but could not identify its installation date or height.
Mr. Shelton, a radiofrequency engineer, supported the claim that the proposed tower would function similarly to a public safety tower but also could not specify a municipality in Schuylkill County with its own tower. He noted the presence of smaller towers associated with fire departments and referenced taller towers in New Jersey. At a subsequent hearing on August 26, 2015, Ms. Baker presented a list of eighteen municipality-owned wireless communication facilities in Pennsylvania, highlighting that many were located near residential areas. However, she again could not identify any municipality-owned towers in Schuylkill County and confirmed that Dauphin and Lancaster Counties were generally more populated than Schuylkill County. The documentation provided included photos of existing towers but lacked specific height information.
Horvath acknowledged that her examples did not include municipality-owned towers in small, rural communities. The Board determined that her proposed use was not comparable to any permitted uses, buildings, or structures in Butler Township. They dismissed Applicant Exhibit 8, which listed municipality-owned towers in nearby counties, citing several reasons: the absence of towers in Schuylkill County or Butler Township, lack of evidence regarding key factors such as proximity to residential areas, zoning regulations, and tower heights, and that none of the listed towers matched the height of the proposed tower. The Board noted that while similar municipally owned facilities exist elsewhere in Pennsylvania, none were required or evidenced in Schuylkill County or Butler Township. They concluded that the proposed tower would not be permitted in the R-1 District but might be allowed in the Light Industrial District.
The Board rejected Ms. Baker’s interpretation of the Ordinance but found Mr. Shelton’s testimony credible. They noted that an existing Service Electric tower was shorter, farther from residences, and obscured by foliage, likely built before the Ordinance was enacted. The Board found insufficient facts about the existing tower’s location and its compliance with township boundaries. Their legal conclusions were supported by substantial evidence, and it was Horvath's responsibility to demonstrate compliance with the similarity test in Section 509. The evidence was conflicting, with Exhibit 8 and testimonies supporting Horvath’s case, while cross-examination and insufficient details on municipal towers favored denial. The Board adequately explained its reasons for rejecting certain evidence, fulfilling its role as the fact-finder in the case.
The court's role does not involve re-assessing conflicting evidence. The Board evaluated municipality-owned towers presented by Horvath but deemed the evidence unworthy of consideration, providing justifications that the court found reasonable despite contradictory evidence. The Board noted the absence of proof regarding the location of these towers within Schuylkill County and key details such as the height of the towers, proximity to residential areas, and applicable zoning regulations. While the court confirmed that the record lacked specific distance representations for the towers to residences, street view photos indicated proximity, despite aerial images being less clear. The heights of the towers were not documented, and there was no indication of compliance with similar zoning provisions.
The Board rejected Ms. Baker's testimony regarding zoning ordinances, determining she was not a zoning expert and finding her credibility lacking. Therefore, the Board's interpretation of the Ordinance was upheld. Although Ms. Baker claimed numerous towers existed in Schuylkill County, she could not name any during cross-examination, supporting the Board's decision to discount her testimony. Conversely, Mr. Shelton, whose testimony was deemed credible, stated that the proposed tower would function similarly to municipality-owned towers but acknowledged that those in the county were generally smaller. His inability to identify any municipality-owned tower also did not influence the Board's decision. The Board's focus on the physical characteristics of the proposed tower rather than solely its functional aspects complied with Pennsylvania law, which grants deference to a zoning board's interpretation of its ordinances. Horvath's application was based on the premise that the proposed tower would be similar to a hypothetical municipality-owned tower permissible under zoning regulations. The Board rejected this premise, and the court found no basis to deem this conclusion incorrect when reviewing the Ordinance's plain language and the record.
The Board's secondary conclusions under Section 803.3 of the Ordinance do not resolve the matter, as Horvath did not satisfy the burden of proof required by Section 509. The secondary conclusion serves as a precautionary measure should the primary finding be incorrect. Although the Board may have misallocated the burden of proof regarding the subjective criteria of Section 803.3, this issue arises only if the primary finding is erroneous. Since the primary finding is supported by substantial evidence, Horvath's argument related to Section 803.3 need not be considered, leading to a summary judgment in favor of the Board on Horvath's substantial evidence claim.
Regarding the unreasonable discrimination claim, the Board contends that it cannot proceed because no second provider exists for comparison. Horvath did not counter this argument, which alone is sufficient for granting summary judgment to the Board. The court agrees, stating that the claim is not ripe for adjudication without a real provider to compare against. The Telecommunications Act (TCA) prohibits unreasonable discrimination to foster competition among telecommunications providers, requiring a two-prong test: first, whether the providers are functionally equivalent, and second, whether the governmental body has unreasonably discriminated among them. Both prongs necessitate the presence of two providers; however, Horvath’s argument relies on a hypothetical provider that is not present. The court cannot adjudicate hypothetical situations, as its authority is limited to actual cases and controversies. A claim is not ripe if it depends on uncertain future events that may not materialize.
Butler Township has not established plans for its own wireless communication tower, nor has the Board interpreted Section 401.1(d) to permit such a structure. The Board's inquiry into zoning districts related to the applicant’s proposed towers indicates skepticism regarding the applicability of Section 401.1(d). The potential for a township-owned facility remains speculative, preventing the court from applying the two-prong test for unreasonable discrimination, which requires actual evidence rather than hypothetical scenarios. Consequently, Horvath’s claim of unreasonable discrimination is not ripe for adjudication, leading to a judgment in favor of the Board.
Regarding Horvath's state law claim, the court will grant summary judgment for the Board and exercise supplemental jurisdiction. A district court typically refrains from exercising supplemental jurisdiction if it has dismissed all original jurisdiction claims unless justified by judicial economy and fairness. In this case, the state law claim closely parallels Horvath's challenge under the Telecommunications Act (TCA), allowing the court to effectively resolve both through its decision on the TCA claim.
For state law claims, a local zoning board’s decision can only be overturned for legal errors or abuses of discretion, with substantial evidence supporting the Board's primary findings being necessary for upholding its decision. The court found that the Board's primary finding was indeed supported by substantial evidence, rendering any potential errors in secondary findings harmless. Therefore, a judgment is entered in favor of the Board on both the unreasonable discrimination claim and the state law claim. The Board's motion for summary judgment is granted, while Horvath’s cross-motion is denied.
Judgment is entered in favor of the Board for all claims in Horvath’s complaint. The facts are primarily sourced from uncontested elements of Horvath's and the Board’s statements of facts. Horvath did not contest the Board’s statement under Local Rule 56.1, leading to the admission of the Board’s material facts. The court will also reference the Return of Record submitted by the Board, which includes documents from the zoning application. The applicant for the zoning permit was Horvath Communications, Inc., not Horvath Towers III, LLC, indicating a possible naming error or fictitious name. The Board has not contested this discrepancy, so the court will refer to Horvath as the applicant. The transcript date for the first hearing is incorrectly noted as June 29, 2016, but all parties agree the correct date is July 29, 2015. The court's consideration of the cross-motions follows the same standards as summary judgment motions, requiring that evidence be viewed favorably towards the non-moving party.
