                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vineyard Oil and Gas Company,                  :
                       Appellant               :
                                               :
                       v.                      :
                                               :
North East Township                            :
Zoning Hearing Board                           :
                                               :
                       v.                      :
                                               :   No. 665 C.D. 2018
Capital Telecom Holdings, LLC                  :   Argued: February 11, 2019


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge (P.)
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
JUDGE COVEY                                        FILED: July 31, 2019

               Vineyard Oil and Gas Company (Objector) appeals from the Erie
County Common Pleas Court’s (trial court) April 16, 2018 order affirming the North
East Township (Township) Zoning Hearing Board’s (ZHB) decision granting Capital
Telecom Holdings, LLC’s (Applicant) variance and special exception application
(Application). There are three issues before this Court: (1) whether the ZHB erred as
a matter of law by concluding that Applicant’s evidence was sufficient to satisfy the
requirements under the Pennsylvania Municipalities Planning Code (MPC)1 and the
Township Zoning Ordinance (Ordinance) for a dimensional variance; (2) whether the
ZHB erred as a matter of law by concluding that Applicant’s evidence was sufficient
to satisfy the Ordinance requirements for a special exception to erect a self-
supporting cell tower structure in lieu of a monopole structure for cell tower

      1
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
antennas; and (3) whether the ZHB erred as a matter of law by finding that the
Telecommunications Act of 1996 (TCA)2 supported the grant of the dimensional
variance and special exception.3
               Applicant is a limited liability company that operates within the
Commonwealth of Pennsylvania (Pennsylvania) and constructs, owns, and manages
wireless communications facilities in Pennsylvania and elsewhere. Objector owns
real property located at 10299 West Main Street, North East, Pennsylvania, which is
directly adjacent to the north of the property owned by Jacob R. Jones (Jones) located
at 10325 West Main Street, North East, Pennsylvania (Property). The Property,
which consists of 5.58 acres and contains a salvage yard, septic tank, gas well and an
automobile repair business, is located in the Township’s B-2 Industrial District and,
under the Ordinance, a wireless communications facility is a use permitted therein.
               Jones also owns adjacent real property to the south and southwest of the
Property. On September 19, 2016, Jones and Applicant entered into an Option and
Telecommunications Facility Lease Agreement (Agreement). Under the Agreement,
Jones leased a portion of the Property to Applicant for the purpose of erecting and
operating a wireless communications facility thereon.
               Pursuant to the Ordinance, if a new antenna support structure is erected
in the Township, the minimum distance between its base and any adjacent property


       2
           47 U.S.C. §§ 151-624.
       3
           Objector includes two additional issues in its Statement of Questions Involved: (1) whether
the trial court abused its discretion by concluding that Applicant’s evidence was sufficient to satisfy
the unnecessary hardship requirement; and (2) whether the trial court erred as a matter of law in
failing to recognize that a substantial burden must attend all dimensionally compliant uses of the
property, not just the particular use the owner chooses. See Objector Br. at 3-4. Because Objector’s
third and fourth issues are subsumed in this Court’s analysis of the first and second issues, they
have been combined therein.
         Objector incorrectly references the trial court’s alleged errors in its issues before the Court.
However, because the trial court did not take additional evidence, the proper standard of review is
whether the ZHB erred. See Marshall v. City of Phila., 97 A.3d 323 (Pa. 2014).
                                                   2
must be equal to the maximum height of the antenna and antenna support structure.
See Section 1106.1(E) of the Ordinance. In addition, although a monopole antenna
support structure is ordinarily required, the ZHB may approve the use of a
freestanding support structure where the applicant can establish the existence of
certain additional requirements. See Section 1106.1(F) of the Ordinance.
             On July 6, 2017, Applicant submitted the Application to the ZHB,
therein requesting a variance from the Ordinance’s setback requirements and for the
construction of a freestanding antenna support structure in lieu of a monopole support
structure. According to the Application, Applicant proposed to construct a 195-foot
tower designed to accommodate collocation by other telecommunications carriers and
emergency services. Since the Ordinance ordinarily requires the base of the proposed
tower to be placed at a distance of at least 195 feet from adjoining properties,
Applicant sought approval for the following distances between the proposed tower’s
base and the adjoining properties: 54 feet, 4 inches to the north; 132 feet, 4 inches to
the south; 113 feet, 5 inches to the east; and 114 feet, 3 inches to the southwest.
Thus, Applicant sought dimensional variances of 140 feet, 8 inches to the north; 62
feet, 8 inches to the south; 81 feet, 7 inches to the east; and 80 feet, 9 inches to the
southwest.   In addition, Applicant expressed its intent to provide access/utility
easement to the Property, and have the proposed tower surrounded by a fenced
compound wherein all associated equipment would be installed.
             On August 22, 2017, the ZHB conducted a hearing at which Applicant
presented expert testimony from Verizon Wireless’ Radio Frequency Engineer Matt
Wierzchowski (Wierzchowski) who related the details of the Application. Applicant
also presented the testimony of Jones, Applicant’s representative Scott Von Rein
(Von Rein), and site acquisition specialist Rich Hanson (Hanson). In addition, the
ZHB called Township Zoning Officer Russ LaFuria (LaFuria) to testify. Objector’s
attorney cross-examined Applicant’s witnesses and raised objections, but presented
                                           3
no evidence. At the conclusion of the hearing, the ZHB unanimously voted in favor
of granting the Application.
               On October 6, 2017, the ZHB issued its decision. Objector appealed to
the trial court on October 27, 2017.4 On March 28, 2018, the trial court held oral
argument. By April 16, 2018 opinion and order, the trial court affirmed the ZHB’s
decision. Objector appealed to this Court.5 On May 15, 2018, the trial court ordered
Objector to file a Pennsylvania Rule of Appellate Procedure 1925(b) statement of
errors complained of on appeal (Rule 1925(b) Statement). Objector filed its Rule
1925(b) Statement on June 4, 2018. On June 28, 2018, the trial court filed its opinion
in response thereto.
               Objector first argues that Applicant’s evidence was insufficient to satisfy
the requirements under the MPC and the Ordinance for a dimensional variance.
               Initially, Section 1106.1(E) of the Ordinance provides:

               Setbacks from Base of Antenna Support Structure
               If a new antenna support structure is constructed (as
               opposed to mounting the antenna on an existing structure),
               the minimum distances between the base of the support
               structure or any guy wire anchors and any property line or
               right-of-way line shall be equal to the maximum height of
               the antenna and antenna support structure.

Reproduced Record (R.R.) at 402a (Ordinance § 1106.1(E)). With respect to a
variance therefrom, Section 703 of the Ordinance governs:


       4
         Applicant filed a notice of intervention.
       5
         Where “the trial court d[oes] not take any additional evidence, an appellate court is limited
to determining whether the zoning board committed an abuse of discretion or an error of law in
rendering its decision.” Marshall v. City of Phila., 97 A.3d 323, 331 (Pa. 2014). “We may
conclude that the zoning board abused its discretion only if its findings are not supported by
substantial evidence, which we have defined as ‘relevant evidence which a reasonable mind would
accept as adequate to support the conclusion reached.’” Id. (quoting Twp. of Exeter v. Zoning
Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009)).


                                                  4
              In accordance with the [MPC], the [ZHB], shall hear
              requests for variances where it is alleged that the provisions
              of this Ordinance inflict unnecessary hardship upon the
              applicant. The [ZHB] may grant a variance provided the
              following findings are made where relevant.
              703.1
              That there are unique physical circumstances or conditions
              including irregularity, narrowness or shallowness of lot size
              or shape, or exceptional topographical or other physical
              condition peculiar to the particular property or use, and that
              unnecessary hardship[6] is due to such conditions and not the
              circumstances or conditions generally created by the
              provisions of the [] Ordinance in the neighborhood or
              district in which the property or use is located.
              703.2
              That because of such physical circumstances or conditions,
              there is no possibility that the property can be developed in
              strict conformity with the provisions of the [] Ordinance,
              and that the authorization of a variance is therefore
              necessary to enable the reasonable use of the property.
              703.3
              That such unnecessary hardship has not been created by the
              applicant.
              703.4


       6
              When an applicant seeks a dimensional variance it is merely seeking a
              reasonable adjustment of the zoning regulations and, therefore, the
              quantum of proof necessary to establish unnecessary hardship for a
              dimensional variance is less than that needed to obtain a use variance.
              Hertzberg [v. Zoning Bd. of Adjustment of the City of Pittsburgh, 721
              A.2d 43 (Pa. 1998)]. In determining if a party has met its burden to
              demonstrate unnecessary hardship for a dimensional variance, the
              courts may consider multiple factors, including the economic
              detriment to the applicant, whether the cost to conform the property to
              the zoning ordinance is prohibitive, and the characteristics of the
              surrounding neighborhood.
Singer v. Phila. Bd. of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011).

                                                5
               That the variance, if authorized, will not alter the essential
               character of the neighborhood or district in which the
               property is located, nor weaken the validity of the zoning,
               nor substantially or permanently impair the appropriate use
               or development of adjacent property, nor be detrimental to
               the public welfare.
               703.5
               That the variance, if authorized, will represent the minimum
               variance that will afford relief and will represent the least
               deviation from the regulation in issue.

R.R. at 394a (Ordinance § 703); see also Section 910.2 of the MPC, 53 P.S. §
10910.2.7
               Here, the ZHB made the following relevant findings:8

               9. The stream bisecting the [] Property, the floodplain
               conditions on the western portion of the [] Property, and the
               size of the [] Property create an unnecessary hardship on
               [Applicant].
               10. Because of the unnecessary hardship set forth in
               Paragraph 9 above, [Applicant] cannot construct the
               proposed tower in strict conformance with the required
               setbacks.
               11. The unnecessary hardship was not created by
               [Applicant] or [Jones].
               12. The reduced setbacks will not alter the essential
               character of the industrial neighborhood adjacent to the []
               Property. It is noted that Section 703.4 [of the Ordinance]
               does not require or permit the [ZHB] to determine whether
               the proposed tower itself will alter the essential character of
               the neighborhood, but whether the setback variances will
               alter the essential character of the neighborhood, the
               proposed tower being a permitted use in the B-2 Industrial
               District.



        7
            Added by the Act of December 21, 1988, P.L. 1329.
        8
            The ZHB listed these findings in the conclusions of law section of its decision.
                                                  6
             13. The requested dimensional variances . . . are the
             minimum variances necessary to afford relief to
             [Applicant].
R.R. at 16a-17a (ZHB Dec. at 8-9).
              At the ZHB hearing, Von Rein testified:
              To the west of [] Jones’ property – they’re both [] Jones’
              property, the one we’re proposing the tower on and, of
              course, the one to the west, there’s a stream that goes in
              between those two properties. All the way down to the
              railroad tracks to the west and including, of course, the
              stream is primarily a wetlands, wet properties, which would
              -- typically are discouraged to build and perhaps even
              prohibited.

R.R. at 328a. Von Rein further related:

              We certainly looked at the entire [P]roperty. We looked at
              several properties in the area to try to find a suitable
              location, [] Hanson can certainly go into detail if you would
              like. But on this particular [P]roperty, [] Jones can testify, I
              believe, there’s a gas well on that [P]roperty. He also is
              running a repair shop there. There’s a septic field also that
              we had to avoid.[9] So there’s several challenges on this
              property. And, of course, there’s a railroad right of way as
              well, which abuts the southern part of the [P]roperty.
              We really sort of found a different spot on the [P]roperty as
              it is because -- you know, buildable from an environment
              perspective and just from a practical perspective accessible
              and not on anything that’s already existing. We already had
              to move the tower a little bit east to avoid a -- to avoid, but
              to provide a setback to the existing stream, so we were
              cognizant of that situation. So we still made some trade-
              offs but unfortunately it puts us in this situation.

R.R. at 329a-330a. Finally, Von Rein explained: “The stream, itself, from a wetland
perspective, requires -- and I know we researched this specifically and we ran -- we



       9
         Notably, the ZHB did not consider these factors when determining whether an unnecessary
hardship exists.
                                               7
had the studies done, but it requires, at least, a 50-foot setback.” R.R. at 331a
(emphasis added).
             In addition, the Application (Exhibit Z-1) was admitted into evidence.
The Application shows that the Property is irregularly shaped and the setback to the
Property to the north is the tower -- the base of which is 54 feet, 4 inches, 132 feet to
the south, 113 feet to the east, and 114 feet to the west.          See R.R. at 332a.
Applicant’s counsel expounded: “So really wherever this tower is located on this
parcel, it’s not going to meet the setback requirements despite the fact that we’re in
the correct zoning district.” Id.
             Finally, LaFuria identified Exhibit B-5, which was entered into
evidence. See R.R. at 344a. LaFuria described Exhibit B-5:

             [T]his is [] an extraction from our [geographic information
             system (]GIS[)] Mapping System. It’s a program called
             Connect Explorer, it’s an [i]nternet-based mapping system
             that the county does for us. It’s a PDF of an aerial of the
             [P]roperty showing the property lines, all the goodies he has
             on site, and the [Federal Emergency Management Agency]
             flood plane is highlighted in blue.

R.R. at 343a-344a.
             Objector asserts that Applicant has not demonstrated a significant
hardship to support the ZHB’s grant of dimensional relief. In support of its position,
Objector cites to Township of East Caln v. Zoning Hearing Board of East Caln
Township, 915 A.2d 1249 (Pa. Cmwlth. 2007) and Schomaker v. Zoning Hearing
Board of the Borough of Franklin Park, 994 A.2d 1196 (Pa. Cmwlth. 2010). Both
cases involved wireless telecommunication providers’ requests for variances to
construct cell towers on which they could place antennas.
             East Caln involved a wireless communication provider’s application to
expand an existing conditional use permit to construct a new monopole cell tower
that exceeded the applicable ordinance’s height requirements.             The provider
                                           8
introduced evidence before the zoning hearing board documenting the coverage gap
and attendant interference with emergency service functioning that the variance’s
approval would eliminate. The zoning hearing board granted the variance, reasoning
it was in the public interest. The zoning hearing board found that the provider had
established an unnecessary hardship accompanying its accessory use of the property,
despite the fact that the property itself was already being productively used as a self-
storage facility and the applicable ordinance permitted a wealth of other principal
uses.   This Court reversed the zoning hearing board’s grant of the variance,
emphasizing that in order for an applicant to meet the burden necessary for variance
relief, the property owner must “establish a hardship that attends the property, as
distinguished from its owner.” Id. at 1254 (emphasis in original).
             Here, although the ZHB concluded that the stream bisecting the Property
and the floodplain conditions constituted an unnecessary hardship, the ZHB failed to
consider the repair shop and the salvage yard for which the Property is currently
being productively used. As the East Caln Court explained:

             A variance may be granted only upon proof that a
             substantial burden attends all dimensionally compliant
             uses of the applicant’s property, which is simply not the
             case here. Among other uses permitted by the [O]rdinance,
             the [P]roperty can continue to be used [as a salvage yard
             and an automobile repair business]. While [Applicant]
             evaluated alternative sites and concluded no other sufficed,
             this does not establish a hardship that attends the
             [P]roperty, as distinguished from its owner. Therefore,
             [Applicant] has not met its burden to show unnecessary
             hardship that will justify a variance.

Id. at 1254 (citation and footnote omitted; emphasis added).
             In Schomaker, also similar to the instant case, the wireless
communication provider sought a variance to construct a communication tower that
did not conform to the applicable ordinance’s setback requirements. The applicants


                                           9
therein argued that although the owner used the property as an electrical substation
and for associated transmission equipment and poles, East Caln did not control
because the size, shape and topography were factors to be considered.                      The
Schomaker Court however, determined that “[i]n East Caln, the Court based its
decision in pertinent part on the fact that someone was already making reasonable use
of the subject property, and based on that fact, the Court concluded that the applicant
had failed to demonstrate a burden associated with the property.” Schomaker, 994
A.2d at 1202. Based thereon, the Schomaker Court ruled the applicant “ha[d] not
established a hardship that entitles it to the variances it requested because the [o]wner
[wa]s already making reasonable use of the [p]roperty.”10 Id. at 1203. Accordingly,
in accordance with East Caln and Schomaker, because Jones is already making
reasonable use of the Property, this Court holds that Applicant has not established an
unnecessary hardship that entitles it to the variances it requested.
              Objector next contends that Applicant’s evidence was insufficient to
satisfy the Ordinance requirements for a special exception to erect a self-supporting
cell tower structure in lieu of a monopole structure for cell tower antennas. This
Court has explained:

              Generally speaking, ‘[a] special exception is not an
              exception to a zoning ordinance, but rather a use which is
              expressly permitted, absent a showing of a detrimental
              effect on the community.’ Manor Healthcare Corp. v.
              Lower Moreland [Twp.] Zoning Hearing [Bd.], . . . 590
              A.2d 65, 70 ([Pa. Cmwlth.] 1991). In other words, as stated
              in our seminal decision in Bray v. Zoning Board of
              Adjustment, . . . 410 A.2d 909, 911 ([Pa. Cmwlth.] 1980)[:]
              ‘The important characteristic of a special exception is that it
              is a conditionally permitted use, legislatively allowed if the

       10
           The Schomaker Court also referenced “that the deviations from the [o]rdinance that
[applicant] requested constitute more than a ‘reasonable adjustment’ of the [o]rdinance.” Id. at
1203. The deviation requested therein was approximately 75%. Here, the variances requested are
approximately 72%, 32%, 42% and 41%.
                                              10
                standards are met.’ This Court recently explained that an
                applicant for a special exception has both the duty of
                presenting evidence and the burden of persuading the
                [ZHB] that the proposed use satisfies the objective
                requirements of the zoning ordinance for the grant of
                special exception.

Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, 300
(Pa. Cmwlth. 2018) (emphasis added).
                Section 1106.1(F) of the Ordinance provides:

                Type of Support Structure
                Except as hereinafter provided in all cases, monopole
                antenna support structure shall be required. The [ZHB]
                may grant use of guy wire, freestanding, or any other type
                of antenna support structure as a special exception use after
                review by the Planning Commission and a public hearing
                before the [ZHB]. The applicant must establish the
                following for such approval:
                1. Cost of erecting a monopole would preclude the
                provision of adequate service to the public, or erection of a
                safe antenna support structure requires a type other than a
                monopole.
                2. The proposed antenna structure would have the least
                practical adverse visual impact on the environment and
                closely resembles a monopole.
            3. The proposed antenna support structure is architecturally
            compatible with surrounding buildings and land use through
            location and design, and blends in with the existing
            characteristics of the site to the extent practical.
R.R. at 402a-403a (Ordinance § 1106.1(F) (emphasis added)).
                Here, the ZHB made the following relevant findings:11
                16. Although [Applicant] did present testimony relating to
                cost of the project, the cost difference between a monopole
                and the self-supporting tower was not proffered as a reason
                for the request for the self-supporting tower. However, the

      11
           The ZHB listed these findings in the conclusions of law section of its decision.
                                                  11
                  nature of the monopole, which can sway and vibrate in the
                  wind, compromises the quality of the cellular service,
                  especially microwave service.[12]
                  17. The proposed self-supporting structure would not have
                  any adverse visual impact on the industrial environment
                  surrounding the [] Property, especially because of the more
                  than one thousand-foot distance between the proposed
                  tower and the commercial corridor on West Main Road.
                  Furthermore, aesthetic considerations are not sufficient to
                  deny a use by special exception.[13]
                  l8. The proposed self-supporting structure is architecturally
                  compatible with the auto repair shop on the [] Property,
                  with the Norfolk & Western Railroad tracks to the south, to
                  the farmland to the east, and to the vacant land to the north
                  and to the west of the proposed tower location.
                  Furthermore, aesthetic considerations are not sufficient to
                  deny a use by special exception.
             19. [Applicant’s] proposal was reviewed by the [Township]
             Planning Commission.
R.R. at 203a.
                  At the hearing, Von Rein testified:
                  [Solicitor John J. Shimeck, III]: Aside from the sway, you
                  said that a self-support structure has less sway than a
                  monopole, therefore it has more reliability in terms of the
                  signal?
                  [] VON REIN: Think about it this way -- the initial answer
                  is yes. The long answer is you’ve got a solid structure in a
                  monopole that acts more or less like a sail, whereas the self-
                  support structure allows the wind to go through it a lot
                  easier. So as a whole it performs a little better from that
                  perspective.
                  So, for example, if Verizon chose to utilize the microwave
                  back home, . . . it would provide the back required to make
                  the site function and those antennas are very sensitive to


         12
              Microwave service is “a point-to-point antenna from a site elsewhere[.]” R.R. at 367a.
         13
              See Heck v. Zoning Hearing Bd. for Harvey’s Lake Borough, 397 A.2d 15 (Pa. Cmwlth.
1979).
                                                  12
            sway. And if the tower is – if it’s very windy it could
            disconnect that connection, for lack of a better phrase.
            [] SHIMECK: So does a 195-foot self-supporting tower
            withstand the wind -- from a structural and safety
            perspective, withstand the wind better than a monopole?
            [] VON REIN: The answer is yes. Coming from a
            common-sense perspective, if you have a three-legged
            structure that has a wider base, as opposed to a narrower
            structure, which is -- I don’t know what analogy to use.
            If you see a flagpole you see it sway back and forth in the
            wind, that’s a similar concept whereas the self-support
            tower is less wind loading because it’s smaller and because
            it allows the wind to go through it all at once.

R.R. at 367a-368a (emphasis added). With respect to costs, Von Rein related:

            [] SHIMECK: Is there a cost differential between the
            monopoles and self-supporting structure?
            [] VON REIN: Yes.
            [] SHIMECK: What are those numbers, ballpark?
            [] VON REIN: Roughly $25,000 in favor of the self-
            support structure.
            ....
            [] SHIMECK: Was the decrease -- or was the less cost of
            the self-support structure one of the factors in determining
            the type? And if that’s yes or no if it was, how significant
            of a factor was it in the determination?
            [] VON REIN: Certainly it was a factor. We’re certainly
            in the business of, you know, building a structure in the
            most cost effective way.
            [] SHIMECK: Is that the driving factor between the two?
            [] VON REIN: It was one of the factors, in addition to the
            others mentioned.

R.R. at 369a-371a (emphasis added).


                                        13
             The above evidence is not “relevant evidence which a reasonable mind
would accept as adequate to support the conclusion[s,]” Marshall v. City of Phila., 97
A.3d 323 (Pa. 2014) (quoting Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp.,
962 A.2d 653, 659 (Pa. 2009)), that “the [c]ost of erecting a monopole would
preclude the provision of adequate service to the public, or erection of a safe antenna
support structure requires a type other than a monopole” and/or “[t]he proposed
antenna structure would have the least practical adverse visual impact on the
environment and closely resembles a monopole.” R.R. at 402a-403a (Ordinance §
1106.1(F) (emphasis added)). Indeed, the ZHB did not make such findings.
             Because Applicant did not establish the elements necessary for the ZHB
to approve a self-supporting structure, this Court holds the ZHB abused its discretion
by determining that Applicant satisfied the requirements for the special exception.
Accordingly, the ZHB erred as a matter of law by concluding that Applicant’s
evidence was sufficient to satisfy the Ordinance’s special exception requirements.
             Lastly, Objector argues that the TCA does not support the grant of the
dimensional variance and special exception. Initially, Section 332(c)(7) of the TCA
provides, in relevant part:

             Preservation of local zoning authority
             (A) General authority
             Except as provided in this paragraph, nothing in this chapter
             shall limit or affect the authority of a [s]tate or local
             government or instrumentality thereof over decisions
             regarding the placement, construction, and modification of
             personal wireless service facilities.
             (B) Limitations
             (i) The regulation of the placement, construction, and
             modification of personal wireless service facilities by any
             [s]tate or local government or instrumentality thereof--


                                          14
              (I) shall not unreasonably discriminate among providers of
              functionally equivalent services; and
              (II) shall not prohibit or have the effect of prohibiting the
              provision of personal wireless services.

47 U.S.C. § 332(c)(7).
              Not every municipality’s denial of an application to build a wireless
service facility violates the TCA. APT Pittsburgh Ltd. P’ship v. Penn Twp. Butler
Cty. of Pa., 196 F.3d 469 (3rd Cir. 1999). “[T]he [TCA’s] ban on prohibiting
personal wireless services precludes denying an application for a facility that is the
least intrusive means for closing a significant gap in a remote user’s ability to reach a
cell site that provides access to land-lines.” Id. at 480 (quoting Sprint Spectrum, L.P.
v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999)).14
              Here, the ZHB made the following relevant findings:

              D. A significant gap in coverage in the Celleo Partnership
              d/b/a Verizon Wireless network exists in the area of [the
              Township] to the west of North East Borough.
              E. The installation of a cellular communications tower on
              the [] Property would provide service to cover the gap area.
              F. Four telecommunications towers exist within a four-mile
              radius of the proposed tower on the [] Property.
              G. The three existing towers to the east, south, and
              southwest of the proposed tower are too distant and

       14
              The [Willoth] Court indicated that the term ‘significant gaps’
              embraces a de minimis principle. ‘Where the holes in coverage are
              very limited in number or size (such as the interiors of buildings in a
              sparsely populated rural area, or confined to a limited number of
              houses or spots as the area covered by buildings increases) the lack of
              coverage likely will be de minimis so that denying applications to
              construct towers necessary to fill these holes will not amount to a
              prohibition of service.’ Willoth, 176 F.3d at 643-44.
APT, 196 F.3d at 480 n.7. The evidence presented herein established that the gap included building
interiors, but did not indicate the populous and, thus, did not show whether the gap is, in fact,
significant. See R.R. at 314a-315a.
                                                15
            differentiated by terrain to cover the existing gap in
            coverage.
            H. The fourth existing tower on the [] Property is
            inadequate in strength and height to support the required
            antenna array and to provide service to the gap in coverage.

R.R. at 13a (ZHB Dec. at 5).
            At the hearing, Wierzchowski testified generally regarding a service
coverage gap, see R.R. at 313a-317a, and the selection of a tower and/or location to
erect a new tower, to cover that gap. See R.R. at 317a-319a. However,

            it is necessary for the provider to show more than that it was
            denied an opportunity to fill a gap in its service system. In
            order to show a violation of [S]ection 332(c)(7)(B)(i)(II) [of
            the TCA] . . . an unsuccessful provider applicant must show
            two things. First, the provider must show that its facility
            will fill an existing significant gap in the ability of remote
            users to access the national telephone network. In this
            context, the relevant gap, if any, is a gap in the service
            available to remote users. Not all gaps in a particular
            provider’s service will involve a gap in the service available
            to remote users. The provider’s showing on this issue will
            thus have to include evidence that the area the new facility
            will serve is not already served by another provider.
            Second, the provider applicant must also show that the
            manner in which it proposes to fill the significant gap in
            service is the least intrusive on the values that the denial
            sought to serve. This will require a showing that a good
            faith effort has been made to identify and evaluate less
            intrusive alternatives, e.g., that the provider has considered
            less sensitive sites, alternative system designs, alternative
            tower designs, placement of antennae on existing structures,
            etc.

APT, 196 F.3d at 480 (footnote omitted).
            Here, Applicant’s relevant evidence only established that a service
coverage gap exists that Applicant’s proposed service will fill.       However, that
evidence is insufficient to support a finding that the proposed service “will fill an


                                           16
existing significant gap in the ability of remote users to access the national
telephone network” and/or that it “is the least intrusive on the values that the denial
sought to serve.” Id. (emphasis added). Accordingly, the TCA does not support the
grant of the dimensional variance and special exception.
            For all of the above reasons, the trial court’s order is reversed.



                                       ___________________________
                                       ANNE E. COVEY, Judge




                                          17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vineyard Oil and Gas Company,               :
                       Appellant            :
                                            :
                   v.                       :
                                            :
North East Township                         :
Zoning Hearing Board                        :
                                            :
                   v.                       :
                                            :   No. 665 C.D. 2018
Capital Telecom Holdings, LLC               :


                                     ORDER

            AND NOW, this 31st day of July, 2019, the Erie County Common Pleas
Court’s April 16, 2018 order is reversed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
