A lawsuit filed against College Township by Verizon Wireless seeks to overturn the rejection of a wireless communication facility proposal made by the township council early last month.
Verizon Wireless proposed the placement of a cellular antenna array along Cortland Drive across from the Nittany Orchard Park. The proposal called for the replacement of an existing utility pole with a new metal pole of the same height, plus an additional 15 feet for the array at the top.
The proposal was denied by council June 2 after several weeks of discussion between council, Verizon representatives and residents of Cortland Drive. Arguments regarding the antennas primarily revolved around whether the replacement of an existing utility pole with a new metal pole supporting the antennas constituted an “in-kind” replacement.
Council denied the proposal based on three arguments — that Verizon is not the pole owner and hadn’t proved it has standing to make the application; Verizon hadn’t sufficiently proved that the pole is an in-kind replacement, making it a tower-based facility, which is not allowed in R-1 zones; and even if it is considered non-tower based, the antennas are not camouflaged properly and are noticeable to the casual observer.
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According to the suit — which was filed June 28 in the Centre County Court of Common Pleas — the township’s denial of the application for land development “was an abuse of discretion and not supported by substantial evidence.”
Verizon must ensure sufficient wireless strength to provide proper reception in a licensed area, the suit said. There is weak signal strength and insufficient wireless capacity in College Township, according to Verizon, so the company’s engineers determined that the installation of a wireless communication facility, including an “in-kind” replacement of a 73.5-foot utility pole, is necessary.
According to the suit, the township zoning laws allow “non-tower-based” wireless facilities in all zoning districts, including the proposed Cortland lot that is zoned R-1. The suit also claims that both the township zoning officer and township solicitor confirmed the proposal constitutes a non-tower-based WCF.
In the same memo by the zoning officer, the suit said, an in-kind replacement of the pole with one of the same height should be considered an existing structure, allowing Verizon to exceed the height of the existing pole by an additional 15 feet in accordance with the zoning ordinance.
According to the suit, the township took the position that land development approval of the project was necessary even though the proposal was a non-tower-based facility and is permitted by right. Citing township ordinance, the suit said that an applicant must only submit a signed, notarized statement by the land owner certifying property ownership and says nothing about the applicant’s standing.
The suit argued that the precise issue raised by council prior to the denial did not involve Verizon’s standing, but whether First Energy had approved the location of the landscaping and other improvements. Standing was never raised as an issue prior to June 2, and Verizon was led to believe that a letter from First Energy approving the location of site improvements would be a condition of approval.
The suit argued that council acted in bad faith, saying Verizon was not aware of its standing to make the application as an issue — an issue that could have been resolved if afforded the opportunity — and attempted to characterize the issue as evidence of a lack of standing.
The suit also cites township law saying it does not regulate, mention or define whether the proposal constitutes an in-kind replacement of an existing utility pole. The suit also argues that the council itself has no jurisdiction for deciding if the replacement is in-kind — a decision that is up to the zoning officer and zoning hearing board.
Finally, the suit argued the denial based on an alleged failure to camouflage the antennas, saying again that such a decision should have been made by the zoning officer.
According to the suit, the proposal met every stealthing element outlined in the township ordinance, also claiming that the language requiring a facility be “virtually indistinguishable to the casual observer” is unconstitutionally vague.
The suit requests that the court determine that land development approval for the project was not required, reversing the decision of the council and deciding that the application is approved by virtue of council’s failure to proceed in good faith and comply with the mandates of the Pennsylvania Municipal Planning Code.
Township Manager Adam Brumbaugh said the township does intend to defend against the suit.