Cellco Partnership v. North Annville Township Zoning Hearing Board

OPINION BY

Célico Partnership d/b/a Verizon Wireless appeals from the order of the Court of Common Pleas of Lebanon County (trial court), which affirmed the decision of the North Annville Township Zoning Hearing Zoning Board (Zoning Board) to deny Verizon’s request to locate a telecommunications tower in the Rural-Residential (R-l) District. The Zoning Board concluded that a cellphone tower was not compatible with a district intended for low-density residential development and farming. On the other hand, the Zoning Board held that Verizon could build a cellphone tower in the General Commercial District. Because the Zoning Ordinance permitted the erection of cellphone towers somewhere in the Township, albeit not where desired by Verizon, the Zoning Board rejected Verizon’s claim that the ordinance was unconstitutionally exclusionary. Finding no error in the trial court’s order, we affirm.

Verizon proposes to build a monopole cellphone tower, 195 feet tall, and place it in a 10,000 square-foot, fenced in area that will also house an equipment shelter. Verizon has leased the land for this purpose from Martin and Barbara Haubrich, whose 16.5 acre property is located in the Township’s R-l District. Verizon filed an application with the Zoning Board for a permit to construct the cellphone tower on the Haubrich property, asserting that it needs a tower there to close a gap in coverage.

The Township’s Zoning Ordinance2 does not list a cellphone tower as one of the uses expressly permitted in the R-l District, but Verizon’s application advanced three alternate theories to support the grant of a permit. First, Verizon believed that under the “savings provision” of the Zoning Ordinance, the Zoning Board could find a cellphone tower to be compatible with the uses expressly authorized in the R-l District, such as a municipal tower, and grant the permit as a permitted use. If the Zoning Board did not so find, Verizon’s second theory was that it was entitled to a variance for its cellphone tower because of the hardship it would otherwise suffer. Verizon’s third theory was that the zoning ordinance was unconstitutionally exclusionary with respect to cellphone towers, thereby entitling it to a permit.

The Zoning Board convened a hearing, at which Verizon began its case with a history of its investigation into an appropriate site for a tower. It considered a site where the Township had granted a variance to Nextel for a cellphone tower that was never built, as well as existing tall structures in the Township on which cellphone antennae could be placed. Verizon *432rejected all alternatives. The Nextel site was located too far east and north to provide effective coverage, and there were no suitable tall structures in appropriate locations. Verizon explained that the Haub-rich property afforded an ideal location, with wooded areas that would partly conceal the tower. Verizon also presented testimony from Timothy Staub, a community planner, who opined that the Zoning Board could consider Verizon’s proposed tower to be similar to a municipal or principal utility structure, each of which is permitted in the R-l District, according to Staub.

In response, the Township contended that Verizon’s cellphone tower did not belong in the R-l District because the tower was a commercial activity that belonged in the Commercial District. Several neighbors (Objectors) whose homes were located near the proposed tower intervened to object to Verizon’s application. Objectors’ expert opined that Verizon could not substantiate its claimed gap in coverage, noting, inter alia, that Verizon used a desired signal strength ten times greater than it had used in other applications to erect a cellphone tower.3 This expert also explained how Verizon could achieve the coverage it wants by using co-located, or multiple, facilities of lesser height. Objectors’ real estate expert opined that Verizon’s cellphone tower would adversely affect the value of Objectors’ properties.

The Zoning Board denied Verizon’s request for a variance, holding that the company had failed to demonstrate that it needed a cellphone tower at the proposed height and only at the proposed location. Verizon appealed to the trial court, which remanded for a finding on the other theories pursued by Verizon, i.e., whether a cellphone tower was compatible with uses permitted in the R-l District and whether the Zoning Ordinance was exclusionary.

On remand, following oral argument and without taking additional evidence, the Zoning Board found that the cellphone tower was not compatible with the uses established by the Zoning Ordinance as permitted in the R-l District.4 However, the Zoning Board did find a cellphone tower to be compatible with the uses intended for the General Commercial District.5 The Zoning Board also rejected *433Verizon’s argument that the proposed cellphone tower was similar to a “municipal” structure of some kind, which is defined as a structure as one “owned” by the municipality. It also held that a cellphone tower is wholly dissimilar to a “principal utility structure,” such as an electrical generating plant. The Zoning Board concluded that the Zoning Ordinance was not exclusionary because Verizon could construct a tower in the Commercial District. Incorporating by reference its earlier decision, the Zoning Board again denied the variance.

Verizon appealed to the trial court,6 where it contended that the Zoning Board erred as a matter of law in refusing to allow the tower in the R-l District as a structure similar to those permitted by the Zoning Ordinance and, alternatively, in concluding that the ordinance is not exclusionary. The trial court affirmed the Zoning Board’s interpretation of the Zoning Ordinance, and it agreed with the Zoning Board that because the cellphone tower was permitted in the Commercial District, the ordinance was not exclusionary. Based on these conclusions, the trial court affirmed the Zoning Board.

Verizon has appealed to this Court, seeking a reversal of the trial court on two grounds.7 First, Verizon contends that the Township’s Zoning Ordinance is de jure exclusionary with respect to cellphone towers, arguing that a cellphone tower is nothing like the uses intended for the Commercial District and, therefore, does not belong in that district. Stated otherwise, Verizon argues that the Zoning Board erred in its reading of the Zoning Ordinance. Second, Verizon contends that a cellphone tower is similar to a principal *434utility structure and to a municipal structure and, therefore, is permitted in the R-1 District. Again, Verizon asserts that the Zoning Board did not correctly interpret the Zoning Ordinance.

Essentially, both of Verizon’s issues turn on the question of whether the Zoning Board has correctly interpreted the Zoning Ordinance. Accordingly, we begin with an examination of the Zoning Ordinance, the meaning of which disposes of both of Verizon’s issues.

It is true, as conceded by the Township, that the words “cellphone towers,” or their equivalent, do not appear in the Zoning Ordinance. It is impossible for a legislative body to anticipate every conceivable use of land and, therefore, the Zoning Ordinance includes a provision that authorizes the Zoning Board to determine whether to permit a use not specifically identified in the Zoning Ordinance. Known as the “savings provision,” Section 304.5 states as follows:

When a specific use is neither permitted nor prohibited in the schedule of district regulations, the [Zoning Board] shall make a determination, as an Administrative Review, as to the similarity or compatibility of the use in question to the permitted uses in the district, basing the decision on the overall intent stipulated for the district.

Zoning ORDINANCE, § 304.5; R.R. 27a (emphasis added). Verizon construes Section 304.5 to allow a cellphone tower in the R-l District, arguing that its tower is similar to a “principal utility structure” and to a “municipal structure.” We consider its similarity arguments seriatim.

We consider, first, what the Zoning Ordinance meant with respect to “principal utility structures,” the siting of which is beyond a municipality’s power to control. The utility exemption from zoning was created by the General Assembly in Section 619 of the MPC, which states as follows:

This article shall not apply to any existing or proposed building or extension thereof, used or to be used by a public utility corporation, if, upon petition of the corporation, the Pennsylvania Public Utility Commission shall, after a public hearing, decide that the present or proposed situation of the building in question is reasonably necessary for the convenience or welfare of the public. It shall be the responsibility of the Pennsylvania Public Utility Commission to ensure that both the corporation and the municipality in which the building or proposed building is located have notice of the hearing and are granted an opportunity to appear, present witnesses, cross-examine witnesses presented by other parties and otherwise exercise the rights of a party to the proceedings.

53 P.S. § 10619 (emphasis added). Thus, a township may have input into the placement of a utility, such as an electrical plant and the lines therefrom, but only by appearing at the hearing before the Public Utility Commission, which has exclusive authority to decide where the utility structures will be placed.

The utility exemption is addressed in Section 519 of the Zoning Ordinance.8 It states as follows:

*435PUBLIC UTILITY EXEMPTIONS. For the purposes of this Ordinance, public utilities exemptions to district requirements shall extend only to accessory support and maintenance structures and buildings not requiring human occupancy. Such uses and structures including fences shall be located no closer than ten (10) feet to any lot line or road right-of-way line. Principal utility structures (e.g. sewage treatment plants, electrical power plants, etc.) shall be permitted in any district but shall comply in all respects with the requirements for a principal use of the district in which it unll be located. In either case, said Utility Corporation shall secure a Building and Zoning Permit from the Zoning Officer prior to the start of construction. Said permit application shall include any and all approvals required by other agencies, etc., for the use specified.

ZONING Ordinance, § 519 (emphasis added); R.R. 62a.9

Section 519 describes “principal utility structures” as “permitted” anywhere, which reflects, correctly, the mandate of Section 619 of the MPC. It was the choice of verb “permitted” in Section 519 that prompted Verizon to devise its argument that its cellphone tower is similar to “principal utility structure.” However, Section 519 states a fact; it does not convey permission that is beyond North Annville’s power to give. Further, Section 519 is not a “schedule of district regulations,” i.e., the provision to which Section 304.5 refers. Zoning ORDINANCE, § 304.5; R.R. 27a. An example is that schedule in Section 402.1, which contains a list of ten different uses permitted in the R-l District. Section 519 is not such a “schedule” of permitted uses. It simply repeats what Section 619 of the MPC established: utilities are exempt from the Zoning Ordinance. North Ann-ville did not “permit” utility structures anywhere in the Township, the General Assembly did this. In sum, Section 519 is irrelevant to Verizon’s “similarity” argument.

Verizon’s similarity argument with respect to municipal structures is equally non-compelling. The Zoning Board rejected Verizon’s argument that a cellphone tower was similar to a municipal structure, noting that a municipal building allowed in the R-l District is one “owned or operated by the municipality or a municipal authority.” Zoning Ordinance, § 402.1(F) (emphasis added); R.R. 30a.10 By contrast, Verizon’s proposed tower is owned and operated by a for-profit enterprise. The Zoning Board also rejected Verizon’s argument because it would lead to absurd results. It would allow a commercial office building to be built in the R-l District on the theory it was “similar to” a municipal office building. Zoning Board Opinion, 1/23/06 at 5. The Zoning Board concluded that “in form and function, the proposed 195 foot tower is dissimilar” to a permitted municipal structure. Id. at 6.

Verizon contends that the Zoning Board and the trial court erred in rejecting its contention that its cellphone tower is similar to a municipal structure, relying on Polay v. Zoning Board of Supervisors of West Vincent Township, 752 A.2d 434 (Pa. Cmwlth.2000). In that case, the Polays sought to place a spring water collection and bottling business in a residential dis*436trict. The zoning board held that a spring water business belonged in the light industrial district where structures similar to a “public utility operating facility5’ could be built. The Polays argued to this Court that their spring water business did not belong in the light industrial district because it was not a utility. In rejecting the Polays5 argument, this Court explained that for a use to be “similar to55 that of a “public utility operating facility,” the putative user did not need to be a utility. Id. at 436. Verizon claims that the Zoning Board and trial court followed the statutory construction argument this Court rejected in Polay.

Polay established that the focus in a “similar to” inquiry should be upon the use, rather than the identity of the user.11 This does not mean, however, that “use” refers only to a type of structure and not to an activity. What takes place at a utility’s sewage treatment plant or at a municipal fire station are activities that serve the public interest. As explained by the trial court, the “element of public benefit” is missing here. Trial Court Opinion, 8/11/06 at 8. Verizon’s cellphone tower will advance Verizon’s ability to compete in a marketplace, but these are commercial interests. There is a benefit conferred on the public by a cellphone tower because people desire cellphone coverage. However, there is an important difference between public and commercial benefits. In the case of a municipal structure or even a utility structure, a governmental body, not a private entity, makes the finding that there is a public benefit to be advanced by the structure. Here, no public body has ever made a finding that Verizon’s proposed cellphone tower in the R-l District is even a good idea, let alone serves the public welfare.

However, even if we were to accept the argument that a cellphone tower is similar to a “municipal” building, or that the Section 519 utility exemption provision has any relevance, that does not carry the day for Verizon. Section 304.5 of the Zoning Ordinance directs that in finding whether a use is “similar to” a permitted use, the Zoning Board must base its “decision on the overall intent stipulated for the district.” Zoning ORdinanoe, § 304.5. This takes us to Section 402 of the Zoning Ordinance, which explains the goals for the R-l District. It states as follows:

The regulations of the Rural-Residential District are designed to accommodate and encourage low density development, primarily residential in nature, consistent with the characteristics of the prevailing open environment of the Township. Development is restricted to low density, single family residential development and related compatible uses designed to serve the residential community.

Zoning ORDINANCE, § 402 (emphasis added; R.R. 30a).

The Zoning Board concluded that Verizon’s proposed cellphone tower was not compatible with the overall intent for the R-l District. The Zoning Board found that Verizon’s cellphone tower would dominate the ridge line and be visible from over 50 percent of the most popular residential areas in the Township. Although the Haubrichs would not see the cellphone tower from their home, other Township residents would see an eight-foot high *437chain link fence with barbed wire on the top as well as the monopole. The Zoning Board also found that the tower was not needed to provide needed cellphone coverage to residents in the Township. Indeed, Verizon offers no cogent explanation as how its cellphone tower is consistent with the overall development intent for the R-l District, i.e., low-density development.

Deference is owed to a zoning board’s understanding of its own ordinance. Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 589 Pa. 71, 81, 907 A.2d 494, 500 (2006) (citation omitted). This principle is particularly apt in this case where the application of Section 304.5 of the Zoning Ordinance, requires a determination that is one of mixed fact and law. The Zoning Board has to decide, first, what was intended generally for the R-l District; second, whether a proposed use is compatible with that overall intent; and, third, whether a proposed use is similar to the uses expressly permitted in the R-l District.

We conclude that the trial court correctly upheld the Zoning Board’s interpretation of Section 304.5. The job of the reviewing court is to give meaning and effect to a legislative construct and avoid absurd results. To allow the erection of a cellphone tower in any district, would mean that Verizon could buy a quarter acre lot in a subdivision and thereon erect a cellphone tower under authority of Sections 519 and 304.5 of the Zoning Ordinance, and this is absurd. We conclude that the Zoning Ordinance does not authorize the placement of Verizon’s proposed cellphone tower in the R-l District.

We turn, then to Verizon’s argument that the trial court erred in affirming the Zoning Board’s decision that a cellphone tower could be placed in the Commercial District. Verizon argues that one cannot find a cellphone tower to be similar to any of the uses expressly permitted in the Commercial District or compatible with the intent for that district. It makes this argument in order to advance its claim that the Zoning Ordinance is exclusionary.

Section 404.1 of the Zoning Ordinance contains a laundry list of commercial uses permitted in the Commercial District. They range from retail stores and forestry reserves to dental clinics. In addition, Section 404.1 authorizes “all other” similar commercial uses. Section 404.1(R) states that the Zoning Ordinance permits

[a]ll other uses which in the opinion of the Zoning Administrator are uses similar to the above uses and in harmony with the intent of the regulations for this district.

Zoning ORdinance. § 404.1(R); R.R. 39a. Verizon argues that a cellphone tower is simply not “similar to” the listed commercial uses and not “in harmony with the intent” of the regulations for the Commercial District.

In support, Verizon points to the intent proviso of Section 404, which states as follows:

INTENT. The regulations of this District are designed to accommodate commercial activity within the Township and areas served by public water and sewer. Since these enterprises are for the most part dependent on traffic generated by a major thoroughfare, these uses are grouped together to facilitate shopping via automobile. The requirements contained in this article are designed to promote safe and expedient conveyance of the resulting high traffic volumes, including use of internal service roads, limited driveway accesses and other designs which may prevent highway congestion commonly associated with commercial development.

*438Zoning Ordinance, § 404 (emphasis added); R.R. 87a. Verizon argues that since its proposed cellphone tower does not need water or sewage service and will not impact traffic flow in the Township, the Zoning Board erred in finding a cellphone tower to be a permitted commercial use under Section 404.1(E) of the Zoning Ordinance. We disagree.

First, Verizon’s argument ignores an essential, qualifying phrase in Section 404, i.e., “for the most part.” The expressly permitted uses listed in Section 404.1 are “for the most part dependent on traffic generated by a major thoroughfare,” but they do not all share this characteristic. Most obviously, the permitted commercial uses of “forestry and forestry reserves” are not dependent on major thoroughfares for their success. Indeed, “traffic” may be viewed as an impediment to a forestry reserve, and a “thoroughfare” is irrelevant, at least until the trees are harvested.

Second, Verizon’s argument fails to take into account the wide swath cut by the list of permitted commercial uses. It covers: beauty parlors, convenience stores, mortuaries, churches, day care centers, bowling alleys, banks, restaurants, upholsterers, boarding houses, laundromats and, as noted, forestry reserves. A cellphone tower is at least as “similar to” any of these expressly permitted uses as one of them is to another. A cellphone tower may not be similar to a beauty parlor, but, then, neither is a bowling alley. The only common ingredient to the list of expressly permitted commercial uses is that they involve commerce, as does, most assuredly, a cellphone tower.12

Third, although it is true that a cellphone tower does not require water and sewage service, this is not the sine qua non of commercial activity. The first sentence of Section 404 simply explains that the Zoning Ordinance accommodates commercial activity by placing the Commercial District in Township areas served by sewer and water lines. The Zoning Ordinance does not define commercial uses in a way that excludes cellphone towers, and it does not limit commercial activities to those needing water and sewage service. Forestry reserves also do not need sewer and water service.

Again, consistent with the deference we owe to the Zoning Board’s interpretation of its Zoning Ordinance, we affirm the Zoning Board and the trial court. We agree with the Zoning Board conclusion that a cellphone tower is permitted in the Commercial District by reason of the “catchall” provision in Section 404.1(R).

Because cellphone towers are permitted in the Township by virtue of Section 404.1(R) of the Zoning ' Ordinance, Verizon’s assertion that the Zoning Ordinance is de jure exclusionary necessarily fails. A zoning ordinance enjoys “a presumption of constitutionality and validity, and the party challenging [the ordinance] bears the ‘heavy burden’ of proving otherwise.” Macioce v. Zoning Hearing Board of the Borough of Baldwin, 850 A.2d 882, 887 (Pa.Cmwlth.2004). The challenger does not overcome that presumption unless it can demonstrate that “the ordinance totally excludes an otherwise legitimate use.” Id. (citation omitted) (emphasis added). The Zoning Ordinance does not allow Verizon to place its cellphone tower exactly where it wishes, but that is not the test of an exclusionary ordinance. The test is whether the Zoning Ordinance “totally excludes” cellphone towers, and it does not.

*439The Zoning Board’s decision is firmly grounded in the language of the Zoning Ordinance. The trial court did not err in affirming the Zoning Board. Thus, we affirm the trial court.

ORDER

AND NOW, this 17th day of December, 2007, the order of the Court of Common Pleas of Lebanon County in the above captioned matter is hereby AFFIRMED.