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COMMUNICATIONS TOWER: PROTECTION UNDER FEDERAL TELECOMMUNICATIONS ACT OF 1996.
Omnipoint Communications Enterprises, L.P. v. ZHB of Easttown Township, 248 F. 3d 101 ( 3d. Cir., April 25, 2001).
A service provider of personal wireless services sought a variance of the applicable 35-foot height restriction for a 110-foot tower to be located in a residential district. The zoning hearing board denied the variance. The provider appealed the variance denial to the Federal courts arguing that the ordinance violated the Federal Telecommunications Act of 1996 ('TCA').
The Federal Court (3d Circuit) first found that to establish that local zoning violated the TCA the provider must show first that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network; and second, that the manner in which it proposes to fill the gap in service is the least intrusive. Furthermore, the TCA requires the local government, when it denies a request to construct personal wireless service facilities, to support its denial by substantial evidence in a written record.
The service provider also argued that a height restriction of 35 feet in a residential district was exclusionary. The court noted that height restrictions in residential zones are a common and reasonable restriction to maintain the residential character of the neighborhood. Furthermore, the rule against exclusionary zoning does not impose upon a municipality the duty to assure that all providers must have a suitable site within the municipality. The court held that to be exclusionary the ordinance must effectively foreclose all providers from building. In this case, the ordinance was not exclusionary because other service providers had previously constructed towers in other zoning districts in the municipality.
The provider also sought damages and attorneys' fees under USCA Section 1983 (Civil Rights Act) which claim was denied by the district court because the remedial scheme under the TCA was intended to foreclose Section 1983 actions.
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