                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-1999

APT PGH. Ltd. Partnership v Penn Twp
Precedential or Non-Precedential:

Docket 98-3519;98-3546




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Recommended Citation
"APT PGH. Ltd. Partnership v Penn Twp" (1999). 1999 Decisions. Paper 300.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/300


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Filed November 8, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 98-3519 and 98-3546

APT PITTSBURGH LIMITED PARTNERSHIP

Appellant in No. 98-3546

v.

PENN TOWNSHIP BUTLER COUNTY OF PENNSYLVANIA,
a Political subdivision of the Commonwealth of
Pennsylvania, PENN TOWNSHIP BOARD OF
SUPERVISORS and PENN TOWNSHIP ZONING HEARING
BOARD

Appellants in No. 98-3519

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 98-cv-00129)
District Judge: Honorable Donetta W. Ambrose

Argued May 6, 1999

BEFORE: NYGAARD, ALDISERT and STAPLETON,
Circuit Judges

(Opinion Filed November 8, 1999)

       Clifford B. Levine (Argued)
       Thorp, Reed & Armstrong
       One Riverfront Center
       Pittsburgh, PA 15222
        Attorney for Appellee/Cross
        Appellant APT Pittsburgh Limited
        Partnership
       David F. Toal (Argued)
       Frank, Bails, Murcko & Toal
       707 Grant Street
       33rd Floor, Gulf Tower
       Pittsburgh, PA 15219
        Attorney for Amicus Curiae
        Personal Communications Industry
        Association

       Thomas L. Wenger
       Steven R. Williams
       Wix, Wenger & Weidner
       508 North Second Street
       P.O. Box 845
       Harrisburg, PA 17108-0845
        Attorneys for Amicus Curiae
        Pennsylvania State Association of
        Township Supervisors

       Philip P. Lope (Argued)
       Lope & Houlihan
       207 East Grandview Avenue
       Zelienople, PA 16063
        Attorney for Appellants/Cross
        Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Penn Township ("Township") appeals the District Court's
order directing it to allow APT Pittsburgh Limited
Partnership ("APT") to erect a communications tower for its
Personal Communications System ("PCS") at a designated
site within the Township. The Township claims that the
District Court erred in concluding that its zoning ordinance
was impermissibly exclusionary under the Pennsylvania
Constitution. APT defends the District Court's conclusion
on that score and cross-appeals the District Court's
conclusion that the Township's zoning ordinance did not
also violate the 1996 Telecommunications Act ("TCA"), 47
U.S.C. S 332(c)(7)(B)(i)(II) & (iii), and, as a result, 42 U.S.C.

                               2
S 1983 as well. We conclude that the Township's ordinance
is not invalid under state law or the TCA and will reverse.

I.

APT holds a license from the Federal Communications
Commission ("FCC") to provide wireless PCS services in the
Pittsburgh Major Trading Area ("PMTA"), which includes
Penn Township. APT's FCC license requires it to provide
"seamless" coverage in the PMTA. PCS systems are
arranged around service "cells" that are anchored upon a
communications facility that transmits and receives signals
from PCS users traveling within the cell. The cells are
arranged in a "honeycomb" pattern, each bordering the
next so that users are passed between facilities as they
travel. Communications facilities are essentially antennae
mounted upon existing structures, new communications
towers, and even include smaller units placed upon
telephone and power line poles. Transmissions between
communications facilities and mobile users operate on a
"line of sight basis." As a result, antennae height becomes
a crucial factor in areas with hilly or mountainous terrain
and other physical obstructions.

APT's PMTA service honeycomb suffered from a gap in
coverage along the major Route 8 corridor in the Township.
As a result, APT decided to create a new cell by installing
a new communications facility in the Township. Because
the Township's topography is marked by rolling hills, APT
decided to build a new communications tower to provide
the height necessary to provide efficient service in the new
cell. APT identified a suitable site at 130 Winters Road,
which is owned by Chris Smith ("Smith Property"). The site
was located on a 73 acre tract in a rural wooded area in the
Township's residential RE zoning district ("RE District").
Soon thereafter, however, the Township passed Ordinance
109 which amended the existing zoning regime to restrict
communications towers to the Township's light industrial M
Districts.1
_________________________________________________________________

1. Ordinance 109 imposes conditions upon tower construction in the M
District including requiring that all towers be: (1) "stealth" designed;
(2)

                               3
To comply with the new Ordinance, APT conducted a
three month investigation to find a suitable tower site in
one of the Township's three M Districts. APT eventually
concluded, however, that land in the M Districts was either
not technologically feasible or unavailable. APT then
decided to enter into a lease agreement for the Smith
Property and applied to the Township's Zoning Hearing
Board ("ZHB") for a zoning variance to except the Smith
Property from Ordinance 109's prohibition upon
communications towers in RE Districts. APT proposed to
erect a 160È lattice tower that could accommodate six
antennae and would not require FAA lighting. In the event
that the ZHB concluded that a variance was not in order,
the application asserted two additional alternative grounds
for relief by claiming that the Township's zoning regime (i)
was impermissibly exclusionary under the Pennsylvania
Constitution, and (ii) violated S 332(c)(7)(B)(i)(II) of the TCA
because it "had the effect of prohibiting" the provision of
PCS services in the Township. APT contended that both
alternative grounds entitled it to site specific relief
permitting it to build its proposed tower on the Smith
Property.

The ZHB held a public hearing to consider APT's
application. Normally, three ZHB officers preside over such
hearings, but only two officers were available for APT's
hearing. Nonetheless, APT and the Township consented to
have their dispute resolved by a two-officer board. APT
presented documentary exhibits and three witnesses in
support of its application. A number of members of the
public spoke in opposition to APT's proposal.

The ZHB issued a written decision with findings of fact
and conclusions of law that denied APT's requests. The
_________________________________________________________________

setback from neighboring property by the larger of (a) the tower's height,
(b) the minimum setback mandated in the district or (c) 50 feet; (3)
fenced and landscaped; and (4) no higher than 200 feet. Additionally,
Ordinance 109 discourages lighting of the tower unless required by the
Federal Aviation Administration ("FAA"), and places the burden upon the
wireless provider "to demonstrate, using technological evidence, that the
antenna must go where it is proposed in order to satisfy its function in
the company's grid system." (A34-8)

                               4
decision summarized the legal requirements for a variance
and explained that APT had failed to satisfy those
requirements. With respect to APT's two alternative
challenges to Ordinance 109's validity, the decision stated
that "by reason of a split decision by the [ZHB], with only
two members participating, the challenges to the Ordinance
are deemed denied." (A42)

APT then filed this suit in the District Court to challenge
the ZHB's decision. Treating the parties' submissions as
cross-motions for summary judgment, and considering only
the ZHB's record, the District Court agreed with APT that
Ordinance 109 was impermissibly exclusionary, but denied
APT's federal claims. It entered an order directing the
Township to allow APT to build its tower on the Smith
Property. Both parties appeal.

II.

Congress enacted the TCA to provide "a pro-competitive,
de-regulatory national policy framework designed to rapidly
accelerate private sector deployment of advanced
telecommunications and information technologies and
services to all Americans by opening all telecommunications
markets to competition." H.R. Conf. Rep. No. 104-458
(1996), reprinted in 1996 U.S.C.C.A.N. 10, 1124. Section
332(c)(7) of the TCA expressly preserves the traditional
authority enjoyed by state and local government to regulate
land use and zoning, but places several substantive and
procedural limits upon that authority when it is exercised
in relation to personal wireless service facilities:

       (7) 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
       State or local government or instrumentality thereof
       over decisions regarding the placement,
       construction, and modification of personal wireless
       service facilities.

       (B) Limitations

                               5
(i) The regulation of the placement, construction,
and modification of personal wireless service
facilities by any State or local government or
instrumentality thereof--

  (I) shall not unreasonably discriminate am ong
providers of functionally equivalent services; and

  (II) shall not prohibit or have the effect of
prohibiting the provision of personal wireless
services.

(ii) A State or local government or instrumentalit y
thereof shall act on any request for authorization to
place, construct, or modify personal wireless
service facilities within a reasonable period of time
after the request is duly filed with such government
or instrumentality, taking into account the nature
and scope of such request.

(iii) Any decision by a State or local government
or instrumentality thereof to deny a request to
place, construct, or modify personal wireless
service facilities shall be in writing and supported
by substantial evidence contained in a written
record.

(iv) No State or local government or
instrumentality thereof may regulate the
placement, construction, and modification of
personal wireless service facilities on the basis of
the environmental effects of radio frequency
emissions to the extent that such facilities comply
with the Commission's regulations concerning such
emissions.

(v) Any person adversely affected by any final
action or failure to act by a State or local
government or any instrumentality thereof that is
inconsistent with this subparagraph may, within 30
days after such action or failure to act, commence
an action in any court of competent jurisdiction.
The court shall hear and decide such action on an
expedited basis. Any person adversely affected by
an act or failure to act by a State or local

                        6
       government or any instrumentality thereof that is
       inconsistent with clause (iv) may petition the
       Commission for relief.

47 U.S.C. S 332(c)(7).

Two of the TCA's limitations on state and local regulation
of land use are implicated in this appeal. The first is its ban
on regulations that "prohibit or have the effect of
prohibiting the provision of personal wireless services." 47
U.S.C. S 332(c)(7)(B)(i)(II). The second is the requirement
that any denial of a request to place, construct, or modify
personal wireless service facilities must "be in writing and
supported by substantial evidence contained in a written
record." Id. S 337(c)(7)(B)(iii). To enforce these and the TCA's
other limitations on the exercise of state and local
authority, the TCA provides parties like APT, who have been
adversely affected by a decision affecting wireless service
facilities, with a cause of action to challenge those decisions
in any court of competent jurisdiction. See id.
S 332(c)(7)(B)(v).

In this case, APT presented the ZHB with a "request to
. . . construct . . . [a] personal wireless service facilit[y]" that
triggered the ZHB's duty to abide by the TCA's substantive
and procedural limitations.2 APT does not claim before us
that the ZHB improperly denied its application for a variance.3
Nor does it dispute that the grant of its application would
be inconsistent with the provisions of Ordinance 109. It
does claim that Ordinance 109 violates the Pennsylvania
constitution because it is impermissibly exclusionary and
the TCA because it has the effect of prohibiting the
provision of personal wire services. Additionally, APT insists
that the ZHB's denial of permission to proceed on the
_________________________________________________________________

2. There is no dispute that APT's proposed tower constitutes a "personal
wireless service facility" under the TCA. See id. S 332(c)(7)(C)(ii).

3. Under the relevant portion of the Pennsylvania statute, 53 P.S.
S 10910.2, a variance was available only if the property had unique
physical attributes that prevented it from being utilized in accordance
with the restrictions of the zoning law. As the District Court noted, the
Smith property had unique physical attributes, but those attributes
concededly did not prevent it from being utilized in conformity with the
applicable zoning law.

                               7
Smith property cannot stand, because its decision on the
constitutional issue and its decision on "the effect of
prohibiting" issue were not "in writing and supported by
substantial evidence contained in a written record" as
required by the TCA. We will address this procedural issue
first.

III.

Subsection 332(c)(7)(B)(iii), which imposes the
requirement that any denial "be in writing and supported
by substantial evidence contained in a written record,"
obviously contemplates a written record compiled before the
state or local decision-making authority, a writing
evidencing that authority's decision, and judicial review of
the decision by the traditional, deferential "substantial
evidence" standard.4 It thus seems apparent that
subsection 332(c)(7)(B)(iii) is intended to provide procedural
protections with respect to determinations of factual issues
made by a state or local authority in the course of applying
state and local zoning law -- i.e., issues like the ones
resolved in the ZHB's opinion in this case.5 By contrast, it
also seems apparent that subsection 332(c)(7)(B)(iii) is not
_________________________________________________________________

4. It is unclear at this point whether the requirement of a "decision . .
.
in writing" is satisfied by a writing that simply memorializes the
ultimate
conclusion or requires findings of fact supporting the denial. Compare
AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423 (4th
Cir. 1998) (when Congress has intended to require a written decision
with factual findings, it has expressly done so; it did not in
S 322(7)(B)(iii)) with Smart SMR of N.Y, Inc. v. Zoning Commission of the
Town of Stratford, 995 F. Supp. 52, 56 (D. Conn. 1998) (findings of fact
required); Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732,
743 (C.D. Ill. 1997) (same); Western PCS II v. Extraterritorial Zoning
Auth., 957 F. Supp. 1230, 1236 (D.N.M. 1997) (same). We find it
unnecessary to resolve in this case whether memorialization of the denial
will suffice.

5. As we have indicated, the ZHB issued a written decision memorializing
its denial of APT's application. That decision included findings of fact,
based on substantial evidence, that were inconsistent with APT's
entitlement to a variance from the requirements of Ordinance 109. It
also noted the uncontested facts indicating that permission for APT to
proceed would be inconsistent with the requirements of Ordinance 109.

                                8
intended to apply to decisions that are not to be made
solely on the basis of the factual record before the agency
and that are not to be the subject of deferential substantial
evidence review.

We have recently held, for example, that the substantial
evidence review contemplated by subsection 332(c)(7)(B)(iii)
is not applicable to the issue of whether a state's denial of
an application to construct a personal wireless service
facility "has the effect of prohibiting the provision of
personal wireless services." See Cellular Telephone v. Ho-Ho-
Kus, No. 98-6484, ___ F.3d ___ (3d Cir. 1999). That decision
is to be made de novo by a reviewing court that will not
necessarily be limited to the record compiled by the state or
local authority. Based on Ho-Ho-Kus, we conclude that
APT's procedural challenge to the ZHB's decision regarding
"the effect of prohibiting" issue must be rejected.

We reach a similar conclusion with respect to the
decision on the validity of Ordinance 109 under the
Pennsylvania Constitution. We simply do not believe that
this was the kind of decision that Congress had in mind
when it passed subsection 332(c)(7)(B)(iii). A decision on the
"exclusivity" of a zoning ordinance under the Pennsylvania
Constitution is a legal issue that is not subject to
deferential judicial review. See Borough of Edgewood v.
Lamanti's Pizzeria, 556 A.2d 22 (Pa. Commonw. Ct. 1989).
While such decisions may involve some consideration of
legislative facts, the evidence to be considered is not limited
to the facts of the particular applicant's case and is not
necessarily limited to the record compiled by the local
authority.

We thus reject APT's procedural challenges and turn to
its substantive arguments.

IV.

Pennsylvania law presumes that zoning ordinances are
"valid and constitutional, [and] thus places a heavy burden
on anyone challenging the ordinance to prove contrary."
Benham v. Board of Supervisors of Middletown Twshp. , 349
A.2d 484, 487 (Pa. Commw. Ct. 1975); Ficco v. Board of
Supervisors of Hempfield Twshp., 677 A.2d 897, 899 (Pa.

                               9
Commw. Ct. 1996). "This presumption can be overcome by
proof that the ordinance totally excludes an otherwise
legitimate use." Farrell v. Worcester Twshp. Bd. of
Supervisors, 481 A.2d 986, 989 (Pa. Commw. Ct. 1984);
accord Ficco, 677 A.2d at 899; Overstreet v. Zoning Hearing
Bd. of Schuylkill Twshp., 618 A.2d 1108, 1112-13 (Pa.
Commw. Ct. 1992). Exclusionary ordinances take two
forms: de jure and de facto. De jure exclusion exists where
"the ordinance, on its face, totally bans a legitimate use."
Farrell, 481 A.2d at 989. De facto exclusion exists "where
an ordinance permits a use on its face, but when applied
acts to prohibit the use throughout the municipality." Id.;
see Borough of Edgewood v. Lamanti's Pizzeria, 556 A.2d
22, 24 (Pa. Commw. Ct. 1989). "Exclusionary impact can
invalidate an ordinance; exclusionary intent is not
necessary." Overstreet, 618 A.2d at 1113.

If a party rebuts the presumption of constitutionality by
presenting sufficient evidence that an ordinance is
exclusionary, the burden then shifts to the state to
demonstrate that the zoning ordinance "b[ears] a
substantial relationship to public health, safety and
welfare." Lamanti's, 556 A.2d at 24; see Exton Quarries, Inc.
v. Zoning Bd. of Adjust. of W. Whiteland Twshp., 228 A.2d
169, 179 (Pa. 1967)("[A] zoning ordinance which totally
excludes a particular business from an entire municipality
must bear a more substantial relationship to the public
health, safety, morals and general welfare than an
ordinance which merely confines that business to a certain
area in the municipality.").

Employing this analysis, the District Court determined
that Ordinance 109 is de facto exclusionary because it
effectively prohibits the construction of communications
towers throughout the Township. According to the District
Court:

       The record contains undisputed evidence that the
       majority of all M Districts are unsuitable for the
       erection of communications towers. Specifically, APT
       introduced testimony that the M Districts are [1]
       restricted to low-lying areas; [2] are too far away from
       Route 8 for transmission purposes; and [3] that they
       abut a stream bed in a floodplain area, and thus could

                               10
       be unsound from a geotechnical standpoint. Given that
       unique topographical and geographical features are
       necessary for the erection of communication towers,
       and that only limited areas in Penn Township
       incorporate such characteristics, I find [Ordinance 109
       exclusionary].

(A12-13). The Court observed that, while the record
indicated that some portions of the M Districts were
suitable for APT's needs, the owner of these lands, the
Spang corporation, refused to lease them to APT. Relying
upon Borough of Edgewood v. Lamanti's Pizzeria , 556 A.2d
22 (1989), the Court concluded that the unavailability of
suitable land rendered Ordinance 109 de facto exclusionary
and, because the Township had offered no evidence to
prove Ordinance 109's substantial relationship to public
health, safety or general welfare, declared it
unconstitutional.

The Township claims that the District Court erred
because the record indicates that APT failed to carry its
"heavy burden" to rebut the presumption of Ordinance
109's constitutionality by showing that it effectively
excludes the construction of any communications towers
throughout the Township. It observes that Ordinance 109
provides ample amount of land--more than 600 acres--in
the M Districts where such towers may be built and that
APT's evidence before the ZHB established only that APT
was unable to negotiate a lease for some of that land to
build a tower necessary for APT's system. According to the
Township, APT did not provide any record evidence that
other wireless service providers could not lease property or
had similar technological limitations and were therefore
unable to erect functional towers anywhere in the
Township. We agree.

Ordinance 109 allows landowners to build
communications towers on over 600 acres of land located in
three M Districts: (i) the Eastern M District, (ii) the Central
M District, and (iii) the Northwest M District. To succeed on
its exclusionary zoning claim before the ZHB, APT had to
prove that no telecommunications provider, including itself,
could build a functional tower in any of the three M

                                11
Districts. While APT claims that its evidence did just that,
our review of the record indicates that it did not.

Virtually all of APT's evidence before the ZHB focused
upon proving that it could not find land in the three M
Districts to build a tower that would enable it to fill the gap
in its service along Route 8. It is simply not true, as APT
maintains, that the record contains evidence that all
wireless providers' systems suffer from the same gap and
are prevented from filling their gaps by Ordinance 109.
Indeed, APT's counsel told the ZHB just the opposite. In
response to a question regarding other providers' needs to
locate towers in the Township, APT's counsel stated:

       There are currently four carriers or additional carriers.
       There are four who are currently operating and several
       additional carriers who have been granted licenses for
       the area.

       One of the important things to remember is that
       because each system is designed differently, the
       systems don't have an identical pattern for each carrier
       so that where as one system may require locating a
       facility and when I say a facility I don't mean a new
       tower, it could be antennas locating on a building such
       as APT has in other areas.

       All the systems are different. Each company does not
       necessarily have to have a facility in each municipality.
       Because of the system difference among the carriers,
       where APT may have a facility Sprint doesn't. There
       could possibly be a facility that AT&T needs but that
       APT does not require.

       * * *

       But, again, simply because there are different carriers
       who have licenses for the same areas, it does not mean
       that each one will require a tower at the same spot.

(SA97-98, 99)

The fact that the design APT has chosen for its system
enables it to erect the tower that it wishes to build only on
a relatively small portion of the land in the M Districts does
not make Ordinance 109 exclusionary. Pennsylvania's rule

                               12
against exclusionary zoning does not impose upon a
township the duty to assure that all providers, regardless of
the systems they have chosen to construct, will have a
suitable site for a functioning tower within the township. To
be exclusionary, the ordinance must effectively foreclose not
only APT's use, but all use. Yet, APT provided no evidence
to the ZHB that other providers could not use any of the
600 acres of M District land to build a tower that would
functionally meet their systems' needs. Without such
evidence we cannot fault the ZHB for determining that APT
had failed to meet its "heavy burden" to prove that
Ordinance 109 was unconstitutionally exclusionary.

Moreover, we do not believe that APT proved that the
concededly feasible M zoned land was unavailable to it.
APT's evidence was designed to establish that it had a gap
on Route 8 and, due to topographical constraints, only 200
acres of land in the Northwest M District provided the
necessary height for APT to build a tower that would reach
its system's gap. APT claimed that the Spang corporation
owned all of this property and, due to Spang's refusal to
lease land to APT, this land was unavailable.

APT claims that this situation is identical to Lamanti's
Pizzeria, 556 A.2d at 24. There, the challenged zoning
ordinance provided that restaurants could not be located
on tracts of land smaller than 30 acres, and the only parcel
meeting this minimum size requirement in the municipality
carried a sales price of $5 million. The Pennsylvania
Commonwealth Court held that the ordinance was de facto
exclusionary because, due to the prohibitive price of the
only conforming tract, no land was available in the
municipality on which to operate a restaurant.

This case is materially different. This is not a case in
which it has been demonstrated that locating the proposed
use in the Township is not economically feasible. APT's
evidence regarding the Spang property reveals only that an
APT representative approached Spang regarding the
availability of a lease and received a negative response. The
record does not disclose anything else about the terms, if
any, of APT's offer to lease or Spang's response. Nor is there
any indication that APT made any effort to purchase the
property. Without such evidence, one simply cannot know

                               13
if it is economically feasible to locate a tower on the Spang
property.6

In sum, the relevant inquiry here is not whether
Ordinance 109 precludes APT from filling its service gap the
way it would like at a price it would like to pay. The
relevant issue is whether, despite the extensive amount of
land where towers are permitted in the Township,
Ordinance 109 effectively precludes any service provider
from building a functional tower in the Township. APT's
evidence before the ZHB is relevant only to the former. This
record is remarkable not for what it contains, but for what
it does not. Pennsylvania law imposed a substantial burden
upon APT to rebut Ordinance 109's presumption of
constitutionality. We conclude that the ZHB was entitled to
find that APT had not carried its burden in this case.

V.

We next consider APT's claim that Ordinance 109 has
"the effect of prohibiting the provision of personal wireless
_________________________________________________________________

6. We also note that some record evidence indicates that 20 acres of
feasible land not owned by Spang may have been available in the
Northwest M District. Keith McCombs, a civil engineer, testified for APT
regarding its search for appropriate land in the Township. His testimony
on cross-examination included the following exchange:

         Q. Ms. Stoker's testimony, as I remember it, was t hat there is
         approximately 600 acres in the northwest M Zone and of that
         approximately one third of it is suitable. So that give[s] us 200
acres
         more or less. As I understand it approximately 90 percent is Spang
         property, so that would leave us 20 acres with other property
         owners?

         A. Yes, but 100 percent of the availability in the   M District is
Spang.

(SA 86) It is unclear from the record what McCombs meant by 100% of
the available land is Spang owned, especially since his testimony is that
the Spang property is unavailable because Spang would not lease it to
APT. This statement contradicted his earlier statement on direct that all
of the suitable property in the Northwest M District was owned by
Spang. APT's expert testimony on this issue is ambiguous, and lends
further support to the ZHB's conclusion that APT failed to carry its
burden to establish that no land feasible for its use was available under
Ordinance 109.

                                 14
services" in violation of 47 U.S.C. S 332(c)(7)(B)(i)(II). As the
Township stresses, every municipality's denial of an
application to build a wireless service facility will have, to a
degree, the "effect of prohibiting personal wireless service"
because it will preclude the applicant provider from
building a facility to serve its customers. Interpreting the
TCA's "effect of prohibiting" clause to encompass every
individual zoning denial simply because it has the effect of
precluding a specific provider from providing wireless
services, however, would give the TCA preemptive effect well
beyond what Congress intended. See Town of Amherst v.
Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 14
(1st Cir. 1999) ("Obviously, an individual denial is not
automatically a forbidden prohibition violating the "effects"
provision."); Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630,
639 (2d Cir. 1999) (rejecting claim that individual denial
violates "effects" provision because it would require court to
"read the TCA to allow the goals of increased competition
and rapid deployment of new technology to trump all other
important considerations, including the preservation of the
autonomy of states and municipalities."); AT&T Wireless
PCS, Inc. v. Virginia Beach, 155 F.3d 423, 428 (4th Cir.
1998) ("[A]ny reading of subsection(B)(i)(II) that allows the
subsection to apply to individual decisions would effectively
nullify local authority by mandating approval of all (or
nearly all) applications . . ."); OmniPoint Communications,
Inc. v. Scranton, 36 F. Supp.2d 222, 233 (M.D. Pa. 1999)
(" `Were courts to hold that merely because there are some
gaps in service in an area . . . the public interest
necessarily tips the balance in favor of allowing a variance,
local boards would be obliged to approve virtually every
application.") (quoting Cellular Telephone Co. v. Borough of
Ho-Ho-Kus, 24 F. Supp.2d 359, 374-75 (D.N.J. 1998));
Primeco Personal Communications Ltd. Partnership, No. 97-
208-CIV-OC-10B, 1998 WL 565036, at *12 (M.D. Fla. 1998)
("S 332(c)(7)(B)(i)(II) is intended to limit general bans or
policies that prohibit or have the effect of prohibiting the
provision of wireless services. Any decision to the contrary
would be at odds with the plain text of S 332(c)(7)(A), which
expressly reserves the bulk of zoning authority to local
governing bodies."); Virginia Metronet Inc. v. Board of
Supervisors of James City Co., 984 F. Supp. 966, 971 (E.D.

                               15
Va. 1998) (accepting argument that S 332(c)(7)(B)(i)(II)
applies simply to individual denials "would be tantamount
to the complete preemption of local authority in areas
previously unserved by cellular services . . . [and would be]
at odds with the plaint text of 47 U.S.C. S 332(c)(7)(A),
which expressly reserves the bulk of zoning authority to
local governing bodies.").

We agree with these courts that the "effect of prohibiting"
clause cannot be so construed. To do so would provide
wireless service providers with a wildcard that would trump
any adverse zoning decision that impaired their ability to
provide wireless service, and would thereby create the
proverbial "exception that swallowed the rule" that would
be entirely inconsistent with S 332(c)(7)'s structure. Indeed,
we do not understand APT to contend otherwise.

This does not mean, however, that a provider can never
establish that an individual adverse zoning decision has the
"effect" of violating S 332(c)(7)(B)(i)(II). Rather, it only means
that the provider must bring additional proof to the court to
demonstrate that the denial is representative of a broader
policy or circumstance that precludes the provision of
wireless service. The most thoughtful discussion we have
found as to how this might be done is found in the recent
opinion of the Second Circuit Court of Appeals in Sprint
Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2d Cir. 1999).
After parsing the text of the TCA, the Court there described
the focus of subsection 372(c)(7)(B)(i)(II)'s prohibition in the
following terms:

        By speaking in terms of communications between
       land stations (cell sites that connect directly to land-
       lines) and mobile stations (wireless telephones) and
       access to facilities necessary to make and receive
       phone calls, the plain focus of the statute is on
       whether it is possible for a user in a given remote
       location to reach a facility that can establish
       connections to the national telephone network. In our
       view, therefore, the most compelling reading of
       subsection B(i)(II) is that local governments may not
       regulate personal wireless service facilities in such a
       way as to prohibit remote users from reaching such
       facilities. In other words, local governments must allow

                               16
       service providers to fill gaps in the ability of wireless
       telephones to have access to land-lines.

Id. at 642-43.

The Willoth Court went on to point out that reading the
prohibition in this manner did not eviscerate the regulatory
authority of zoning boards preserved in the TCA. Local
boards may insist that service gaps be closed by the least
intrusive means:

        A local government may reject an application for
       construction of a wireless service facility in an under-
       served area without thereby prohibiting personal
       wireless services if the service gap can be closed by less
       intrusive means. See Town of Amherst, 173 F.3d 9,
       1999 WL 174253, at *5 ("[I]ndividual denial is not
       automatically a forbidden prohibition," but disallowing
       "the only feasible plan . . . might amount to prohibiting
       wireless service."). There are numerous ways to limit
       the aesthetic impact of a cell cite. It may be possible to
       select a less sensitive site, see Gearon & Co. v. Fulton
       County, 5 F. Supp. 2d 1351, 1355 (N.D. Ga. 1998), to
       reduce the tower height, see Town of Amherst, 173
       F.3d 9, 1999 WL 174253, at *6, to use a preexisting
       structure or to camouflage the tower and/or antennae,
       see e.g., Cellco Partnership v. Town Plan & Zoning
       Comm'n of Farmington, 3 F. Supp. 2d, 178, 185, 186
       (D. Conn. 1998) (describing antennae placed on water
       tower, and permitting applicant to reconstruct church
       steeple with six antennae placed inside); Smart SMT of
       New York, Inc. v. Zoning Comm'n of Stratford, 995 F.
       Supp. 52, 59 (D. Conn. 1998) (describing an antenna
       placed on a billboard and current applicant seeking to
       conceal tower with seven evergreen trees).

Id. at 643.

The Court further pointed out that, since the focus is on
the remote users' access to the national telephone network,
the authority of the local board to deny applications is
greater where the area which the provider applicant seeks
to serve is already served by another provider:

        Furthermore, once an area is sufficiently serviced by
       a wireless service provider, the right to deny

                               17
       applications becomes broader: State and local
       governments may deny subsequent applications
       without thereby violating subsection B(i)(II). The right
       to deny applications will still be tempered by
       subsection B(i)(I), which prohibits unreasonable
       discrimination. However, it is not unreasonably
       discriminatory to deny a subsequent application for a
       cell site that is substantially more intrusive than
       existing cell sites by virtue of its structure, placement
       or cumulative impact.

Id.

The ultimate holding of the Willoth Court was that the
"Act'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." Willoth, 176 F.3d at 643. 7 We conclude that
this reading of subsection 332(c)(7)(B)(i)(II) effects the best
accommodation of the two primary goals of the TCA. It
preserves the authority of state and local land use planners
to the maximum extent consistent with assuring the access
of remote users of personal wireless services to the national
telephone network.

Given this understanding of subsection 332(c)(7)(B)(i)(II),
it is unnecessary for a provider whose application has been
denied to show an express ban or moratorium, a consistent
pattern of denials, or evidence of express hostility to
personal wireless facilities. On the other hand, 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 subsection 332(c)(7)(B)(i)(II)
under Willoth, an unsuccessful provider applicant must
_________________________________________________________________

7. The 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 constuct towers necessary
to fill these holes will not amount to a prohibition of service." Willoth,
176 F.3d at 643-44.

                               18
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.8

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.

We agree with the District Court that APT has not
tendered evidence which would support a conclusion that
the ZHB's denial had the effect of prohibiting the provision
of personal wire services. As we have noted, APT has
successfully established that the design it has chosen for
its system enables it to erect the tower that it wishes to
build only on a relatively small portion of the 600 available
acres. APT's evidence, however, tells one nothing about
whether the other providers were already servicing the
Route 8 corridor and, if so, how that service was being
provided. While the record shows that APT considered other
sites and the feasibility of a tower of lesser height on the
Smith site, it would not support an inference that APT's
proposal was the least restrictive means of achieving a
significant gap in service.
_________________________________________________________________

8. As the Willoth Court pointed out, even if the area to be served is
already served by another provider, the TCA may invalidate the denial of
a variance if it has the effect of unreasonably discriminating between
providers. Securing relief under this provision of the statute will
require
a showing that the other provider is similarly situated, i.e., that the
"structure, placement or cumulative impact" of the existing facilities
makes them as or more intrusive than the proposed facility.

                               19
VI.

For the foregoing reasons, we will reverse the judgment of
the District Court and remand with instructions to enter
judgment for the Township.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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