Hourigan, Kluger & Quinn Leads Central PA Telecommunications Case to Grant Cell Phone Tower Variance

Hourigan, Kluger & Quinn

Hourigan, Kluger & Quinn Leads Central PA Telecommunications Case to Grant Cell Phone Tower Variance

July 13, 2022

A federal judge in Harrisburg says Commonwealth Court’s reading of Federal Communications Commission regulations regarding the construction of cell phone towers “simply defies common sense.”

U.S. Middle District Judge Christopher C. Conner made the comment last week in an opinion that allows a 195-foot monopole to be erected in a sparsely populated section of Union County in central Pennsylvania.

His order granted a variance denied by the White Deer Zoning Hearing Board sought by Cellco Partnership that does business as Verizon Wireless.

It’s Conner’s position that the federal Telecommunications Act takes precedence over local township zoning board decisions that have the effect of prohibiting personal wireless services.

Verizon claims it needs the tower to provide consistent service for a four-mile stretch of the Interstate 80 corridor and the site along White Deer Pike is the best place for it.

It obtained a lease on a 65-by-40-foot plot from Willard E. Simpler III and Nancy S. Messimer in the northwestern part of the township in the New Columbia area.

The zoning board denied the variance citing a failure to comply with lot size and setback requirements. It also expressed concern injuries could result should there be a structural failure.

The board maintains its decision was based on a bona fide local zoning concern and not because cell service was available from other carriers.

It cited a 2020 Commonwealth Court’s ruling reversing a lower court decision that approved variances for the construction of cell phone towers in a different township.

The state court ruled municipalities had the power to reject applications that do not meet the requirements of zoning ordinances even if there is a demonstrated coverage need and a good faith effort was made to identify lesser intrusive alternatives.

Commonwealth Court “reads too much substance in the Federal Communications Commission’s boilerplate regulatory disclaimers,” Conner wrote in his opinion granting the variances.

Its interpretation is further undermined by the conflict it creates with the Telecommunications Act’s goal of limiting the ability of state and local governments to block expansion and improvement of wireless service, he said.

The state court ruling contradicts the U.S. Third Circuit Court of Appeals that consistently concludes denials of variances grounded in bonafide zoning concerns can violate a clause of the Telecommunications Act, the judge said.

Version argued and Conner agreed there is a need for service in at part of the I-80 corridor and that the White Deer Pike site was the least intrusive because most of the land in the area is state owned and the Department of Conservation and Natural Resources has a moratorium on cell towers.

Township Supervisor Carroll Diefenbach’s reaction to Conner’s ruling was “our cell tower ordinance means nothing.”

Attempts to reach the Camp Hill attorney who represented the township was unsuccessful.

By John Beauge | Special to PennLive
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