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


6-25-1999

Omnipoint Corp v. Zoning Hearing Bd
Precedential or Non-Precedential:

Docket 98-1962




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Recommended Citation
"Omnipoint Corp v. Zoning Hearing Bd" (1999). 1999 Decisions. Paper 166.
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Filed June 25, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1962

OMNIPOINT CORPORATION; LINDA GENTH

v.

ZONING HEARING BOARD OF PINE GROVE TOWNSHIP;
BOB PANKAKE, in his capacity as zoning officer
for Pine Grove Township

       Zoning Hearing Board of Pine Grove
       Township, Schuylkill County, Pennsylvania
       and Bob Pankake,
       Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 97-cv-07088
(Honorable Franklin S. Van Antwerpen)

Argued April 29, 1999

Before: SCIRICA, ROTH and McKAY,*
Circuit Judges

(Filed: June 25, 1999)



_________________________________________________________________

*The Honorable Monroe G. McKay, United States Circuit Judge for the
Tenth Judicial Circuit, sitting by designation.
       L. ROSTAING THARAUD, ESQUIRE
        (ARGUED)
       Marshall, Dennehey, Warner,
        Coleman & Goggin
       1845 Walnut Street
       Philadelphia, Pennsylvania 19103

        Attorney for Appellants

       LINUS E. FENICLE, ESQUIRE
        (ARGUED)
       Reager & Adler
       2331 Market Street
       Camp Hill, Pennsylvania 17011

        Attorney for Appellees

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this case brought under the Telecommunications Act
of 1996, P.L. 104-104, 110 Stat. 56 (codified in scattered
sections of 15 and 47 U.S.C.), the issue is whether the
District Court properly found that the denial of a special
exception under the Pennsylvania Municipalities Planning
Code, Pa. Stat. Ann., tit. 53, S 10909.1(6) (West 1997), to
build a tower for transmission of wireless telephone signals
was not supported by substantial evidence as required by
the Telecommunications Act S 704(a), 47 U.S.C.A.
S 332(c)(7)(B)(iii) (West Supp. 1999). We will affirm.

I

On June 30, 1997, Omnipoint, a major wireless
telephone service provider,1 applied to the Zoning Hearing
_________________________________________________________________

1. "Although often called `cellular' telephone service, several different
technologies compete. Omnipoint uses a high frequency, digital system
called personal communication service, or `PCS.' Almost all systems
employ hand-held telephone sets communicating by radio with antennas
strategically located on towers or buildings; each antenna is connected
eventually to the land-line telephone network." Town of Amherst, N.H. v.
Omnipoint Communications Enters., Inc., 173 F.3d 9, 10 n.1 (1st Cir.
1999).

                                  2
Board of Pine Grove Township in Schuylkill County,
Pennsylvania for a special exception permitting Omnipoint
to build a 114-foot monopole2 on property located in a
sparsely populated, mountainous region of the township.
The Board held hearings on Omnipoint's application on
August 14, 1997 and September 11, 1997. At the hearings,
Omnipoint was represented by Lee Woodmansee of JM
Consulting Group, who testified the proposed site"is
surrounded by large 80, 90 foot trees, in my estimation"
and therefore that the monopole would "probably" be visible
only to neighbors more than 600 feet away. Woodmansee
estimated that the nearest neighbor's residence was 500
feet from the proposed site. Although Woodmansee believed
there were studies generally showing no adverse effect of
towers such as the proposed monopole on the values of
adjoining properties, JM Consulting had conducted no
study in this instance. Several local residents questioned
Woodmansee about the visibility of the tower, its effects on
property values, and especially health threats associated
with its radio emissions. David Ravegun, a neighboring
property owner, testified that he estimated the trees in the
area to be approximately 60 feet in height. As a result, he
believed the tower would be visible from his property,
especially in winter, and therefore would hurt his property
value. He also testified, allegedly on the basis of a classified
report to which he had access, that the tower's high
intensity radio transmissions would be harmful to
neighbors' health. Ten other neighboring property owners
represented they would offer testimony substantially similar
to Ravegun's.

On October 21, 1997, the Board denied Omnipoint's
requested exception because "a) no studies were done on
the effect of adjoining land owners [sic] property values; b)
the burden of proof with respect to the proposed structure
not adversely effecting [sic] the general character of the
neighborhood was not met." Omnipoint then brought this
_________________________________________________________________

2. A monopole is a telecommunications tower used to transmit wireless
telephone signals. Ordinarily, Omnipoint, like other wireless telephone
providers, sites its transmitters on existing structures. In such
locations,
the transmitters are almost invisible. Where no suitable pre-existing
structures are available, a tower is built.

                               3
action alleging the Board's denial of the special exception
violated the Telecommunications Act. The parties agreed to
a non-jury trial based on a written record that included an
extensive stipulation of undisputed facts. On September 16,
1998, the District Court found the Board's decision had not
been based on substantial evidence because, first, 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; and second,
the decision was based on aesthetic considerations and a
desire to preserve property values, factors the District Court
held cannot justify denial of a special exception under
Pennsylvania law. Omnipoint Corp. v. Zoning Hearing Bd.,
20 F. Supp. 2d 875, 878-80 (E.D. Pa. 1998). The District
Court ordered the Board to issue the special exception, see
id. at 881-82, and the Board now appeals.

II

Congress enacted the Telecommunications Act3 "to
_________________________________________________________________

3. The Telecommunications Act of 1996 S 704(a), 47 U.S.C.A. S 332(c)(7)
provides in relevant part,

       (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

        (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 among providers of
       functionally equivalent services; and

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

       . . . .

       (iii) Any decision by a State or local government or
instrumentality
       thereof to deny a request to place, construct, or modify personal
4
provide for a pro competitive, de-regulatory national policy
framework designed to accelerate rapidly 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, at 113 (1996), reprinted
in 1996 U.S.C.C.A.N. 124, 124. Among the
telecommunications technologies addressed was wireless
telephone service. Congress found that "siting and zoning
decisions by non-federal units of government[ ] have created
an inconsistent and, at times, conflicting patchwork of
requirements which will inhibit the deployment of Personal
Communications Services as well as the rebuilding of a
digital technology-based cellular telecommunications
network." H.R. Rep. 104-204, at 94 (1995), reprinted in
1996 U.S.C.C.A.N. 10, 61. But Congress also "recognize[d]
that there are legitimate State and local concerns involved
in regulating the siting of such facilities . . ., such as
aesthetic values and the costs associated with the use and
maintenance of public rights-of-way." Id. at 94-95, reprinted
in 1996 U.S.C.C.A.N. at 61. The House version of the Act
would have required the FCC to regulate the siting of
wireless telephone transmitters, but the Conference
Committee instead enacted S 332(c)(7) to "preserve the
authority of State and local governments over zoning and
land use matters except in . . . limited circumstances . . . ."
H.R. Conf. Rep. No. 104-458, at 207-08, reprinted in 1996
_________________________________________________________________

        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 [FCC]'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 thirty 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.

                                5
U.S.C.C.A.N. at 222. As the First Circuit noted, section
332(c)(7) "is a deliberate compromise between two
competing aims--to facilitate nationally the growth of
wireless telephone service and to maintain substantial local
control over siting of towers." Town of Amherst, N.H. v.
Omnipoint Communications Enters., Inc., 173 F.3d 9, 13 (1st
Cir. 1999).

Subsection 332(c)(7) 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 wireless telephone
service, see S 332(c)(7)(B)(i)(I), act in a manner that
effectively prohibits the provision of wireless telephone
services, see S 332(c)(7)(B)(i)(II), or make zoning decisions
based on concerns over the environmental or health effects
of the radio emissions associated with wireless telephone
service, see S 332(c)(7)(B)(iv); Cellular Telephone Co. v. Town
of Oyster Bay, 166 F.3d 490, 494 & n.3 (2d Cir. 1999). In
addition, a zoning board's decision to deny permission to
build a wireless service facility must be "in writing and
supported by substantial evidence contained in a written
record." S 332(c)(7)(B)(iii). If a zoning board violates these
statutory requirements, S 332(c)(7)(B)(v) gives the adversely
affected party a cause of action, which is to be decided "on
an expedited basis."

Omnipoint has brought this suit under S 332(c)(7)(B)(v),
maintaining that the Board's decision was not supported by
substantial evidence as required by S 332(c)(7)(B)(iii). The
District Court had original federal question jurisdiction
under 28 U.S.C.A. S 1331 (West 1993). We have appellate
jurisdiction over the District Court's final order under 28
U.S.C.A. S 1291 (West 1993).

III

Because "substantial evidence" is a legal term of art, we
presume Congress intended to adopt the term's ordinary
legal meaning. See McDermott Intern., Inc. v. Wilander, 498
U.S. 337, 342 (1991). Here, the Conference Committee
confirmed that it intended the courts to review zoning
decisions under the same standard applied to federal

                               6
administrative decisions. See H.R. Conf. Rep. No. 104-458,
at 208, reprinted in 1996 U.S.C.C.A.N. at 223. Substantial
evidence is not "a large or considerable amount of evidence,
but rather `such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.' " Pierce
v. Underwood, 487 U.S. 552, 565 (1988) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). In determining whether the evidence before an
agency was substantial, a court views the record in its
entirety and takes account of evidence unfavorable to the
agency's decision. See American Textile Mfr. Inst., Inc. v.
Donovan, 452 U.S. 490, 523 (1981). We apply the same
standard as the District Court. See Adorno v. Shalala, 40
F.3d 43, 46 (3d Cir. 1994) (review of disability benefit
decisions under 42 U.S.C. S 405(g)).

Subject to the substantive limitations described supra,
"[t]he substantial evidence test applies to the locality's own
zoning requirements." Amherst v. Omnipoint, 173 F.3d at
16. The Board contends the special exception was denied
for aesthetic reasons and to protect the values of
neighboring properties. Such considerations are sufficient
to support the denial of a special exception under
Pennsylvania law4 and are consistent with Congress' intent
to allow localities to accommodate traditional zoning
considerations in siting wireless telephone transmitters.
The question, therefore, is whether the Board had before it
substantial evidence that the proposed special exception
_________________________________________________________________

4. The Pennsylvania Municipalities Planning Code authorizes local zoning
ordinances to specify the standards governing requests for special
exceptions. See Pa. Stat. Ann., tit. 53,S 10912.1 (West 1997). Aesthetics
and concern for property values may be included in these standards. See
Berk v. Wilkinsburg Zoning Hearing Bd., 410 A.2d 904, 905-06 (Pa.
Commw. Ct. 1980). Pine Grove Township Zoning Ordinance S 902(3)(c)
requires that a proposed exception "not adversely affect the character of
the general neighborhood, nor the conservation of property values, nor
the health and safety of residents or workers on adjacent properties and
in the general neighborhood, nor the reasonable use of neighboring
properties. The use of adjacent properties shall be adequately
safeguarded." This language encompasses the grounds on which the
Board defends its decision.

                               7
would cause deterioration to the aesthetic character of the
area or to neighboring property values.5

The Board relies heavily on AT&T Wireless PCS, Inc. v.
City Council, 155 F.3d 423 (4th Cir. 1998), where the court
affirmed the city council's denial of a conditional use permit
to build two 135-foot wireless telephone transmission
towers based on considerable community opposition. The
Court of Appeals for the Fourth Circuit stressed the
legislative nature of the city council:

        The Virginia Beach City Council is a state legislative
       body, not a federal administrative agency. . . . It is not
       only proper but even expected that a legislature and its
       members will consider the views of their constituents
       to be particularly compelling forms of evidence, in
       zoning as in all other legislative matters. These views,
       if widely shared, will often trump those of bureaucrats
       or experts in the minds of reasonable legislators.

Id. at 430. On the other hand, the Court Appeals for the
Seventh Circuit characterized zoning permit decisions as
primarily administrative in nature:

       [T]rue as the AT & T Wireless observation may be
       about legislators, it overlooks the fact that municipal
       councils often wear several hats when they act. When
       they are passing ordinances or other laws, they are
       without a doubt legislators, but when they sit as an
       administrative body making decisions about zoning
       permits, they are like any other agency the state has
       created. We therefore apply the conventional
       substantial evidence standard to the case before us.
_________________________________________________________________

5. Omnipoint argues that opponents of the exception did not meet the
evidentiary burden required by Pennsylvania law. But we agree with the
Board that the Telecommunications Act does not authorize general
appeals in federal court of state zoning decisions. The question before us
is whether the Board's decision was supported by substantial evidence--
the evidentiary burden specified in the Telecommunications Act. See
Aegerter v. City of Delafied, 174 F.3d 886, ___, 1999 WL 225310, at *2-
*4 (7th Cir. 1999); Cellular Telephone, 166 F.3d at 494-97 (both applying
the substantial evidence requirement of S 332(c)(7)(B)(iii) without regard
to state law evidentiary burdens).

                               8
Aegerter v. City of Delafied, 174 F.3d 886, ___, 1999 WL
225310, at *3 (7th Cir. 1999). The Zoning Hearing Board of
Pine Grove Township described itself as a "quasi-judicial
body" in the Joint Statement of Undisputed Facts. Under
Pennsylvania law, "[t]he zoning board has a dual role,
partly legislative and partly quasi-judicial." Urbano v.
Meneses, 431 A.2d 308, 311 (Pa. Super. Ct. 1981) (internal
quotation marks and citations omitted). The Urbano court
summarized with approval decisions in other states holding
that "zoning boards are acting in a quasi-judicial function
when they rule upon an application for a zoning permit for
a particular piece of property . . . ." Id. ; see also Norate
Corp. v. Zoning Bd. of Adjustment, 207 A.2d 890, 893 (Pa.
1965) (referring to a zoning board as "a quasi-judicial
body"); Hill v. Zoning Hearing Bd., 597 A.2d 1245, 1248 (Pa.
Commw. Ct. 1991) (describing zoning boards as
administrative in nature); Huebner v. Phila. Sav. Fund
Soc'y, 192 A. 139, 142 (Pa. Super. Ct. 1937) (same).
Because the Zoning Hearing Board acted in a quasi-judicial
capacity when it denied Omnipoint's application, we apply
the substantial evidence standard as we would to the
decision of a federal administrative body.

In AT&T Wireless, "numerous area residents" spoke
against the permit application and the council received
petitions, also in opposition, bearing almost 800 signatures.
155 F.3d at 425. The protestants argued primarily that two
135-foot towers would be "eyesores" if erected in "a heavily
wooded residential neighborhood with no significant
commercial development, no commercial antenna towers,
and no above-ground power lines." Id. at 425, 424. Here,
the District Court found that "any claims asserted by
protestants were at best very general and speculative[,]"
Omnipoint v. Zoning Hearing Bd., 20 F. Supp. 2d at 880,
and we agree. Eleven neighbors asserted that the monopole
would be visible over the tree line and would damage their
property values. But Ravegun, who spoke for all eleven
neighbors, addressed the visibility of the tower only briefly
and presented no evidence regarding property values.
Ravegun's comments and the questions that he and other
residents asked of Woodmansee focused more on alleged
health effects, which the Board may not consider under
S 332(c)(7)(B)(iii), than on aesthetic considerations or

                               9
property values. As the Court of Appeals for the Second
Circuit held, a "few generalized expressions of concern with
`aesthetics' cannot serve as substantial evidence" for
purposes of S 332(c)(7)(B)(iii) and, similarly, "[a] few
generalized concerns about a potential decrease in property
values, especially in light of [the plaintiff]'s contradictory
expert testimony, does not seem adequate to support a
conclusion that the permits should be denied." Cellular
Telephone, 166 F.3d at 496 (2d Cir. 1999) (internal
quotation marks omitted).

Because the Board's denial of the exception was not
based on substantial evidence, the District Court properly
ruled that the Board's decision violated the
Telecommunications Act.

IV

The Board also contends that the District Court should
have remanded the case to the Zoning Hearing Board
rather than ordering the exception issued. We generally
review a district court's choice of equitable remedy for
abuse of discretion, provided the remedy ordered is
permitted by the governing law. See Castrol, Inc. v. Pennzoil,
Co., 987 F.2d 939, 943 (3d Cir. 1993); Voest-Alpine Trading
USA Corp. v. Vantage Steel Corp., 919 F.2d 206, 211 (3d
Cir. 1990). Injunctions are proper forms of relief under
S 332(c)(7)(B)(v), see Cellular Telephone, 166 F.3d at 497,
and the Board has not suggested any purpose that would
be served by remand. We see no abuse of discretion here.
Cf. Allen v. Bowen, 881 F.2d 37, 43-44 (3d Cir. 1989)
(refusing Secretary of Health and Human Services' request
for a remand to allow further development of the record
after a finding that the Secretary's decision had not been
supported by substantial evidence, in part because"there is
no good cause for the Secretary's failure to adduce all the
relevant evidence in the prior proceeding").

V

For the reasons given, we will affirm the judgment.

                                10
A True Copy:
Teste:

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

                               11
