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Zoning Board May Not Discriminate Among Functionally Equivalent Telecommunications Providers; a Board is Not Entitled to Judicial Immunity from a Section 1983 Claim Cross-reference- Telecommunications Act of 1966; Section 1983, Civil Rights Act; MPC Sections 910.2, 1002-A This case addresses issues of immunity, discrimination and the effect of the Telecommunications Act of 1966. A Zoning Hearing Board denied the application of a telecommunication provider for approval to erect a wireless communications tower. The property, zoned commercial highway district, is the current site of a roller rink. The application requested a special exception to erect the tower and a variance from the local regulation allowing only one principal use per lot. The special exception regulation required the applicant demonstrate that it made a good faith effort to co-locate its antenna on a nearby tower, before an exception would be granted. The Board found that the applicant did not make a good faith effort to co-locate the antennae and did not show that the property could not be developed in strict conformity with the zoning regulations The applicant proceeded to federal district court alleging a violation of the Telecommunications Act of 1996, 47 U.S.C. 332, a Civil Rights Act, Section 1983 action, 42 U.S.C. 1983, alleging the Board discriminated among functionally equivalent providers, and alleging the decision must be reversed for lack of substantial evidence to support the decision, in accordance with both the Telecommunications Act and the MPC In response, the Board asserted it is not a "person" for purposes of Section 1983 liability and as a quasi-judicial entity it has absolute immunity from suit. The District Court reviewed cross summary judgment motions and held as follows: 1. The provider must provide evidence regarding whether a significant gap in wireless communication service is created as a result of the Board's decision. To permit such a gap would be a violation of the Telecommunications Act. The provider must demonstrate that the area the new facility will serve is not already served by another provider and the proposed plan is the least intrusive means to bridge the gap in wireless service. 2. The Telecommunication Act prohibits discrimination between functionally equivalent providers of wireless services. A discriminatory effect is initially demonstrated when the applicant shows uncontested evidence that the Board granted five applications for special exceptions and variances to other telecommunication applicants within the preceding three years. The applicant must also show that such discrimination is unreasonable by demonstrating that the structure or placement or impact of the existing facilities make them more intrusive than the proposed facility. 3. In accordance with MPC Section 909.1(a)(6) the Board has exclusive jurisdiction to hear and render final decisions regarding the zoning ordinance. The Board's decisions constitute municipal policy for the purposes of a Section 1983 claim and the Board may be held liable for its actions. 4. A Zoning Board sued in its official capacity is entitled to no immunity. 5. Denial of the variance to allow an additional principal use on the lot was supported by substantial evidence where the applicant admitted that the property could be subdivided, even though the division would be awkward.
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