Tower company suit dismissed in federal court

A communications company can’t construct a wireless communications tower in Montoursville following a ruling in U.S. Middle District Court.

Judge Matthew W. Brann denied summary judgment for Horvath Towers and granted it to the borough zoning hearing board after a multi-year court challenge.

The real estate company constructs wireless communications towers and sued the board claiming it wrongly blocked the construction of a tower by misinterpreting federal telecommunications law.

Horvath Towers, which leased land on which it constructs radio towers and then sublets the use of the towers to licensed wireless carriers, entered into a lease agreement in 2013 with the Willing Hand Hose Co., the borough’s volunteer fire company. The agreement was to allow the company to erect a 145-foot-tall radio and cell phone tower on the land.

The company on March 12, 2015, filed an application challenging the validity of the borough ordinance limiting the towers for “non-governmental use.”

On June 22, 2017, the parties filed cross-motions for summary judgment. In its motion, Horvath argued the board’s rejection of its ordinance challenge violated federal and state law. The company cited the Telecommunications Act of 1996, and state law.

Earlier in the case, board solicitor Marc Drier said the board believed the rejection was legally sound.

“The board was aware of the federal law and looked at the facts as presented,” Drier said. “It did not believe the application required a different result because of the telecommunications act.”

In his decision, which he handed down recently, the judge wrote the company’s challenges to the board’s decision are challenges of a legal issue and should be analyzed under the proper state law framework and not under the 1996 law.

In addition, the company argued the ordinance created exclusion of non-governmental use communications towers in the borough.

Under state law, zoning ordinances are presumed to be “valid and constitutional,” Brann wrote, adding there is a “heavy burden on anyone challenging the ordinance to prove” otherwise.

The company’s own witnesses admitted there was no exhaustive canvass of the recreational and industrial zoning districts for a possible communications tower site. The court not conclude the ordinance prevented any service provider from building a functional tower in Montoursville. Judgment was entered in favor of the board on counts one and three of the complaint and the case will be dismissed.