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A Township May Not Deny a Special Exception for a Telecommunication Tower without Substantial Evidence, Pursuant to the Telecommunications Act of 1996.
Omnipoint v. Zoning Hearing Board of Pine Grove Township, 181 F.3d 403, (Third Circuit, 1999)
Note: Distinguished by Omnipoint Communications Enterprises v. ZHB of Easttown Twp., 248 F.3d 101
Cross Reference- MPC Section 912.1; Telecommunications Act of 1996
The U.S. Court of Appeals for the Third Circuit affirmed a district court's decision ordering a zoning board to grant a special exception to a wireless telephone service provider permitting it to construct a telecommunication tower pursuant to the Telecommunications Act of 1996. The Third Circuit Court found that a township zoning board failed to support its denial of the special exception by substantial evidence, in violation of the Act.
At the hearing before the zoning board, objectors had raised issues regarding the tower's negative effect on property values and health concerns arising from potential high intensity radio transmissions. The zoning board denied the special exception because the applicant offered no studies on the effect of adjoining landowners' property values and because the applicant did not meet its burden of proving that the proposed structure would not adversely effect the general character of the neighbor.
Upon review, the federal district court found the evidence before the board did not establish the detrimental effect of the proposed tower with a "high degree of probability" as required by Pennsylvania law.
The Third Circuit Court noted that the Act provides for local regulation of the placement of wireless telephone transmission equipment, with certain statutory limitations: Local zoning authorities may not discriminate among providers of such services or act in a manner that effectively prohibits the provision of wireless telephone services or make zoning decisions based on concerns over the environmental or health effects of the radio emissions associated with such service. A decision to deny permission must be supported by substantial evidence supported by a written record.
The Third Circuit found that Pennsylvania law, embodied in the MPC, does authorize local zoning authorities to deny special exceptions for aesthetic reasons and to protect the value of neighboring properties. Such considerations were found to be consistent with Congress' intent to allow localities to accommodate traditional zoning consideration in siting wireless transmitters. However, the Third Circuit Court applied a different standard of review. The Court observed that under Pennsylvania law, a zoning board has a dual role, partly legislative and partly quasi-judicial. The Court held that the zoning board was acting in a quasi-judicial capacity when it denied the special exception. The Court applied the same substantial evidence standard as would apply to the decision of a federal administrative body ("such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"). The Court disregarded the Pennsylvania state standard of evidentiary burden. Within the "substantial evidence" standard, the Court held that a few generalized expressions of concern with aesthetics did not serve as substantial evidence nor did protests regarding decreasing property values offered without supporting evidence (e.g. appraisals) . Furthermore, the Telecommunications Act prohibits consideration of a telecommunication's tower's alleged adverse health effects.
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