J. DePolo v. Bd. of Supervisors of Tredyffrin Twp. and M. Heaberg, K. Mayock , 168 A.3d 387 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey J. DePolo, :
Appellant :
:
v. : No. 79 C.D. 2017
: Submitted: July 7, 2017
Board of Supervisors of Tredyffrin :
Township; and Michael C. Heaberg, :
Kristen K. Mayock, Paul Olson, :
Evelyn Richter, John P. :
DiBuonaventuro, Mark Freed, :
and Murph Wysocki, in their :
capacities as members of the :
Board of Supervisors of Tredyffrin :
Township and Tredyffin Township :
Zoning Hearing Board of Appeals; :
and Arnold Borish, Daniel McLaughlin :
and Neill Kling, in their capacities as :
members of the Zoning Hearing Board :
of Appeals of Tredyffrin Township :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
SENIOR JUDGE PELLEGRINI FILED: August 2, 2017
Jeffrey J. DePolo (DePolo) appeals from an order of the Court of
Common Pleas of Chester County (trial court) finding that he could not “transfer”
his federal complaint to the trial court under Section 5103 of the Judicial Code, 42
Pa.C.S. § 5103, to act as an appeal from a zoning board decision. We affirm.
I.
DePolo, a federally licensed amateur radio enthusiast, owns property
located at 1240 Horseshoe Trail, Tredyffrin Township (Township), Pennsylvania
(property) consisting of 2.9 acres and zoned in the R-1/2 Residential District of the
Township. On November 25, 2013, he filed an application with the Township to
construct a 180-foot radio tower on his property.1 That application was denied by a
zoning officer who concluded that Section 208-18(G) of the Township’s Zoning
Ordinance (Ordinance) limited structures in the R-1/2 Residential District to 35
feet.2 DePolo was informed that he would be permitted to construct a 65-foot
tower, but he rejected that offer.
II.
On February 4, 2014, DePolo appealed the denial of his application to
the Tredyffrin Township Zoning Hearing Board (ZHB) contending that the
Ordinance’s fixed and firm height restriction of 35 feet, as enacted and as applied,
was contrary to state3 law and preempted by the Federal Communications
1
DePolo and his wife originally filed the zoning permit application.
2
The local zoning ordinance at issue, Section 208-18.0 of the Tredyffrin Township
Zoning Ordinance, establishes area, bulk and height restrictions for the R-1/2 Residential District
in which DePolo lives and provides that “[t]he height of any building shall not exceed 35 feet.”
Section 208-113, Building height projections, provides in relevant part that “antennas and similar
projections shall be included in calculating the height of a building,” with certain conditions.
3
Section 302 of the General Local Government Code provides that a municipality that
adopts “an ordinance . . . or takes any other action involving the placement, screening or height
of antennas or antenna support structures shall reasonably accommodate amateur radio service
communications and shall impose only the minimum regulations necessary to accomplish the
legitimate purpose of the municipality.” 53 Pa.C.S. § 302(a). It further provides that a
“municipality may impose necessary regulations to ensure the safety of amateur radio antenna
(Footnote continued on next page…)
2
Commission’s (FCC) declaratory ruling known as PRB-1, Federal Preemption of
State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d
952 (1985), adopted at 47 C.F.R. § 97.15(b).4 DePolo declined to reduce the
height of the proposed tower.5
After public notice was provided and hearings were held, on October
23, 2014, the ZHB issued a decision denying DePolo’s application for the 180-foot
(continued…)
structures, but must reasonably accommodate amateur service communications. No ordinance,
regulation, plan or any other action shall restrict amateur radio antenna height to less than 65 feet
above ground level.” 53 Pa.C.S. § 302(b).
4
As pertinent, 47 C.F.R. § 97.15(b) provides:
(b) Except as otherwise provided herein, a station antenna structure
may be erected at heights and dimensions sufficient to
accommodate amateur service communications. (State and local
regulation of a station antenna structure must not preclude amateur
service communications. Rather, it must reasonably accommodate
such communications and must constitute the minimum practicable
regulation to accomplish the state or local authority’s legitimate
purpose. See PRB-1, 101 FCC 2d 952 (1985) for details.)
The FCC declaratory ruling known as PRB-1 announced “a limited preemption policy” stating
that “local regulations which involve placement, screening, or height of antennas based on
health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur
communications, and to represent the minimum practicable regulation to accomplish the local
authority’s legitimate purpose.” In the Matter of Federal Preemption of State & Local
Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952, 960 (1985).
5
DePolo originally attached a variance application which, if granted, would allow him to
erect a radio tower exceeding the Ordinance’s height restrictions. However, prior to the
conclusion of the ZHB hearing, DePolo withdrew that application.
3
tower but granting him a permit for a 65-foot tower. The ZHB noted that there
were three levels of regulation involved in the current appeal. The first level of
regulation is contained in Section 208-18.0 of the Ordinance, limiting the height of
structures to 35 feet in the R-1/2 Residential Zoning District. Section 208-113 of
the Ordinance provides that “antennas and similar projections shall be included in
calculating the height of a building. . . .”
The second level of regulation is contained in Section 302 of the
General Local Government Code, where the General Assembly provided that
municipalities regulating antenna height “shall impose only the minimum
regulations necessary to accomplish the legitimate purpose of the municipality.”
53 Pa.C.S. § 302(a). Municipalities may impose necessary safety regulations but
must accommodate amateur radio communications and may not restrict radio
antenna height to less than 65 feet above ground level. Municipalities may also
take action “to protect or preserve a historic, a historical or an architectural district
that is established by the municipality or pursuant to Federal or State law.” 53
Pa.C.S. § 302(c).
As to the third level, the FCC’s declaratory ruling known as PRB-1,
adopted at 47 C.F.R. § 97.15(b), announced a “limited preemption policy.” 101
F.C.C.2d at 960. The ZHB interpreted this regulation to prohibit “local
municipalities from precluding amateur radio communications,” but observed that
the FCC expressly declined to regulate the height of radio antenna towers.
(Reproduced Record (R.R.) at 37a-38a.) It noted that PRB-1 directed
4
municipalities to “accommodate reasonably” such communications without
creating any rights for the amateur radio operators themselves.
Taking those regulations into consideration, the ZHB denied DePolo’s
request for the proposed 180-foot tower. The ZHB first found that the proposed
tower was “not compatible” with the surrounding residential neighborhood because
it “would greatly exceed the height of all residential buildings and accessory
structures in the area” and “would create an adverse visual impact on the
neighborhood.” (R.R. at 36a.) The proposed tower’s “height, mass, and
latticework design” was “of a type universally associated with . . . a factory area or
industrialized complex” and “poses a safety hazard to neighboring properties
because its fall radius extends up to 120 feet into neighboring properties.” (Id.)
The ZHB also found that the R-1/2 Residential District in which
DePolo lived was designed under Ordinance Section 208-16 “to minimize
disruption to notable features such as the Exceptional Value Valley Creek
Watershed, Valley Forge Mountain, and the natural, scenic and historic character
of the Township.” (R.R. at 40a.) Moreover, it “would be visible from a key
viewpoint in Valley Forge National Historical Park,” which is a “historic resource
and an important aspect of the visitor experience.” (R.R. at 36a, 37a.)6 It also
6
As the ZHB explained:
The R-1/2 Residential Zoning District is specifically designed to
minimize the disruption to notable features such as Valley Forge
Mountain and, as such, the Township and residents have the right
to expect the proposed tower to be reasonable in height and impact
on the residential area while at the same time respecting the
(Footnote continued on next page…)
5
noted that the United States Department of Interior, National Park Service and
Valley Forge National Historical Park objected to the application because the
tower, as proposed, would be visible from a key viewpoint in the Valley Forge
National Historical Park.
The ZHB also found that the reasonable accommodation required
under PRB-1 did not “require[] a municipality to allow an amateur operator to
erect any antenna s/he desires.” (R.R. at 41a.) The ZHB concluded that the
Township made a reasonable accommodation contemplated by the FCC by
allowing a 65-foot tower, which DePolo declined despite “ample evidence” it
would permit him to engage in extensive radio communications. It found that
DePolo is able to engage in amateur radio communications using an antenna with a
height as low as 17 feet. A 65-foot tower with a seven megahertz antenna would
(continued…)
Applicants’ right to participate in amateur radio communications.
The proposed tower height will greatly exceed the height of
residences in the area and, by its very design, is intended to be of
such a height that it is taller than the tallest tree that may possibly
cause some attenuation of the signal for the Applicants’ desired
communications at the upper frequency levels. The U.S.
Department of the Interior, National Park Service, Valley Forge
National Historical Park, a party to this matter, opposes this
application because it will damage the viewshed of the historic
Valley Forge Park. It is clear that the Township need not permit
the construction and installation in a residential neighborhood of
the type of antenna that is commonly and universally associated
with those that one finds in a factory area or an industrialized
complex.
(R.R. at 41a-42a) (citations omitted).
6
allow him to reach Ireland, Portugal, most of Spain, parts of North Africa and parts
of France with a 40% reliability threshold, a threshold that would only increase by
10% were the 180-foot tower permitted. A 65-foot tower with a 14 megahertz
antenna would allow him to reach Belgium, Amsterdam, all of Spain and North
Africa with a 40-50% reliability threshold, which would also only increase by 10%
were the 180-foot tower permitted.
The ZHB also concluded that the Ordinance’s limitation of the
maximum height of structures in the R-1/2 Residential District to 35 feet was not
invalid because DePolo had the opportunity to seek a variance, which he withdrew
by stipulation. While it denied his application for the 180-foot tower, the ZHB did
grant DePolo a permit for a 65-foot tower.
III.
Rather than appeal the ZHB’s decision to the trial court, within 30
days of the ZHB decision, DePolo filed suit in federal district court (district court)
contending that the 65-foot variance and the Ordinance’s fixed and firm height
restriction of 35 feet, as enacted and as applied, was contrary to state law and
preempted by federal law. Following a motion to dismiss, on May 18, 2015, the
district court found that it had jurisdiction under the decision Izzo v. Borough of
River Edge, 843 F.2d 765 (3d Cir. 1988), but dismissed the matter pursuant to Fed.
R. Civ. P. 12(b)(6) for failure to state a claim. See DePolo v. Board of Supervisors
7
of Tredyffrin Township, 105 F. Supp. 3d 484 (E.D. Pa. 2015), appeal dismissed,
835 F.3d 381 (3d Cir. 2016).7
DePolo then filed an appeal with the United States Court of Appeals
for the Third Circuit which, on August 30, 2016, issued a decision concluding that
“[w]e have jurisdiction pursuant to 28 U.S.C. § 1291,”8 but dismissing the action
because:
. . . DePolo’s failure to appeal the ZHBA’s [Zoning
Hearing Board of Appeals] determination to state court
rendered the decision final and that, given the unique
procedural history of this case, we must afford the
ZHBA’s final judgment the same preclusive effect
that it would have had in state court. It is therefore not
reviewable in this suit.
***
We have explained that “in determining whether a
litigant has been given a ‘full and fair’ opportunity to
litigate a claim, we must take into account the possibility
of appellate review” because a full and fair opportunity to
litigate “includes the possibility of a chain of appellate
review.” The ZHBA is a state administrative agency
acting in a quasijudicial capacity. It resolved this dispute
by issuing a written determination containing final
findings of fact and conclusions of law. While DePolo
was aggrieved by the ZHBA’s decision limiting the
7
The district court dismissed the matter under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, holding that the Township’s proposed 65-foot variance was a valid and reasonable
accommodation to the 180-foot tower request and the Township’s Ordinance was not federally
preempted.
8
DePolo, 835 F.3d at 386.
8
variance to 65-feet, he had adequate opportunity to
litigate the matter beyond the ZHBA by appealing to the
appropriate Court of Common Pleas within thirty days of
the ZHBA’s decision. Rather than do that, DePolo
filed this suit in the District Court, and allowed the
thirty-day appeal period under state law to expire.
This was fatal to his ability to obtain federal review of
his claim. DePolo actually withdrew his request for a
variance before the ZHBA and then failed to challenge its
factual findings or legal conclusions in the forum
provided under state law. He is therefore now bound by
the final judgment of the ZHBA. Its ruling is a final
judgment on the merits that is entitled to preclusive
effect in federal court. Accordingly, we will dismiss
this appeal.
DePolo, 835 F.3d at 387 (footnotes and citations omitted, emphases added).
On September 12, 2016, DePolo filed a motion for transfer with the
Third Circuit seeking to “transfer” his action to the trial court under Section 5103
of the Judicial Code, 42 Pa.C.S. § 5103 (relating to erroneously filed matters). The
Third Circuit denied that motion. On November 10, 2016, more than two years
after the ZHB’s decision, DePolo filed a complaint with the trial court, again
purporting to “transfer” the matter under 42 Pa.C.S. § 5103. Following
preliminary objections, the trial court dismissed the matter with prejudice. DePolo
then filed a notice of appeal.9
9
Where a preliminary objection presents a question of law, such as objections related to
issues of statutory interpretation, our scope of review is plenary, and our standard of review is de
novo. Russo v. Allegheny County, 125 A.3d 113, 116 n.5 (Pa. Cmwlth. 2015), aff’d, 150 A.3d 16
(Pa. 2016).
9
IV.
This appeal presents the limited issue of whether DePolo can use 42
Pa.C.S. § 5103, titled “Transfer of erroneously filed matters,” to transfer his
dismissed federal action to state court to act as an appeal from the ZHB decision,
from which he decided not to appeal. 42 Pa.C.S. § 5103(b), the specific provision
in question, provides:
(b) Federal cases.--
(1) Subsection (a) shall also apply to any matter
transferred or remanded by any United States court
for a district embracing any part of this Commonwealth.
In order to preserve a claim under Chapter 55 (relating to
limitation of time), a litigant who timely commences an
action or proceeding in any United States court for a
district embracing any part of this Commonwealth is not
required to commence a protective action in a court or
before a magisterial district judge of this Commonwealth.
Where a matter is filed in any United States court for a
district embracing any part of this Commonwealth and
the matter is dismissed by the United States court for
lack of jurisdiction, any litigant in the matter filed may
transfer the matter to a court or magisterial district of this
Commonwealth by complying with the transfer
provisions set forth in paragraph (2).
(2) Except as otherwise prescribed by general
rules, or by order of the United States court, such
transfer may be effected by filing a certified transcript
of the final judgment of the United States court and the
related pleadings in a court or magisterial district of this
Commonwealth. The pleadings shall have the same
effect as under the practice in the United States court, but
the transferee court or magisterial district judge may
require that they be amended to conform to the practice
in this Commonwealth. Section 5535(a)(2)(i) (relating to
termination of prior matter) shall not be applicable to a
matter transferred under this subsection.
10
42 Pa.C.S. § 5103(b) (emphases added).
Because 42 Pa.C.S. § 5103(b)(1) provides that “a litigant who timely
commences an action or proceeding in any United States court . . . is not required
to commence a protective action in a court or before a magisterial district judge of
this Commonwealth,” DePolo contends that his “transfer” is actually a timely
appeal from the ZHB’s decision.
However, DePolo’s purported “transfer” must fail for two reasons.
First, 42 Pa.C.S. § 5103(b) only authorizes a litigant to transfer a matter from
federal court to state court where the federal action was dismissed for lack of
jurisdiction. Despite his protestations that his federal claims were dismissed for “a
lack of jurisdiction to decide on the merits,” (DePolo’s Brief at 12), both the
district court and the Third Circuit explicitly concluded that they each had
jurisdiction over his claims, and then dismissed the federal complaint on other
grounds. That fact, on its own, precludes DePolo’s ability to transfer his federal
action to the trial court.
Second, once the Third Circuit denied DePolo’s motion to “transfer”
his action to the trial court under 42 Pa.C.S. § 5103, in effect, even if it had
dismissed the action for lack of jurisdiction, he was precluded from transferring the
action to state court. It is more than well-settled that a federal order governing the
same subject matter must be honored under the full faith and credit clause of the
United States Constitution. See Delaware Valley Citizens’ Council for Clean Air
v. Commonwealth of Pennsylvania, 755 F.2d 38, 44 (3d. Cir. 1985).
11
Accordingly, we affirm the trial court’s order.
____________________________________
DAN PELLEGRINI, Senior Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey J. DePolo, :
Appellant :
:
v. : No. 79 C.D. 2017
:
Board of Supervisors of Tredyffrin :
Township; and Michael C. Heaberg, :
Kristen K. Mayock, Paul Olson, :
Evelyn Richter, John P. :
DiBuonaventuro, Mark Freed, :
and Murph Wysocki, in their :
capacities as members of the :
Board of Supervisors of Tredyffrin :
Township and Tredyffin Township :
Zoning Hearing Board of Appeals; :
and Arnold Borish, Daniel McLaughlin :
and Neill Kling, in their capacities as :
members of the Zoning Hearing Board :
of Appeals of Tredyffrin Township :
ORDER
AND NOW, this 2nd day of August, 2017, it is hereby ordered that the
order of the Court of Common Pleas of Chester County dated December 20, 2016,
is affirmed.
____________________________________
DAN PELLEGRINI, Senior Judge