IN THE COMMONWEALTH COURT OF PENNSYLVANIA

TowerCo 2013 LLC, :

Appellant :

:

v. : No. 239 C.D. 2017

: ARGUED: November 14, 2017

Cecil Township Board of Supervisors :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE OLER, JR. FILED: December 8, 2017

TowerCo 2013 LLC (TowerCo) appeals from the January 30, 2017 

order of the Court of Common Pleas of Washington County (trial court), which 

denied TowerCo’s appeal and affirmed the opinion of the Cecil Township Board of 

Supervisors (Board) that found TowerCo’s application to construct a 

communications tower facility (Tower Facility) in Cecil Township (Township) 

incomplete. We affirm.

TowerCo is a tower infrastructure provider that owns and operates 

communications tower sites across the country. Pittsburgh SMSA Limited 

Partnership d/b/a Verizon Wireless (Verizon) is a provider of wireless 

communications services. TowerCo entered into a ground lease agreement with 

James Osella to construct a Tower Facility on Osella’s property (Property) in the

Township. The Property is located in an R-1 Zoning District and consists of 
2

approximately 23.5 acres. The Cecil Township Zoning Ordinance (Ordinance) 

provides for communications towers as a conditional use in an R-1 Zoning District.

On September 22, 2015, TowerCo filed a conditional use application to 

construct a Tower Facility on the Property to fill a significant gap in Verizon’s 

coverage in the Township. The Board held a public hearing on November 17, 2015 

in connection with the application. The Board did not vote on the application at the 

November 17, 2015 hearing. After the meeting, TowerCo delivered to Bruce Bosle, 

the Township zoning officer, a certified survey identifying all property owners 

within 300 feet of the Property. At the Board’s regularly scheduled December 7, 

2015 meeting, some Township residents stated that they did not receive notice of the 

November 17, 2015 hearing. On December 12, 2015, in response to the Township’s 

request to send additional notice to Township residents, TowerCo agreed to extend 

all time limitations under the Pennsylvania Municipalities Planning Code (MPC), 

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101 – 11202, by 90 days. 

Thus, a second hearing was scheduled in an effort to ensure that all appropriate

residents received proper notice and had an opportunity to be heard. 

On January 25, 2016, the Board conducted the second public hearing. 

At the hearing, TowerCo presented testimony and evidence, the Board questioned 

witnesses, and several Township residents spoke. The Board did not vote at this 

hearing. At the Board’s regularly scheduled meeting on February 15, 2016, the 

Board voted to reject the application.1 On February 19, 2016, the Board issued its 

 

1 The Board’s vote was 2 to 2.
3

written decision and TowerCo appealed to the trial court, which took no additional 

evidence. 

The trial court found that TowerCo: (1) failed to notify the neighbors 

within 300 feet of the Property, as required in section 1212(A) of the Ordinance; (2)

met the requirements under section 1212(B) of the Ordinance, showing that no other 

structures are feasible; (3) failed to demonstrate pursuant to section 1212(C) of the 

Ordinance that it is licensed by the Federal Communications Commission (FCC) to 

operate the Facility; (4) failed to show compliance with the FCC safety standards 

pursuant to section 1212(D) of the Ordinance by submitting a report of an evaluation 

rather than the actual evaluation itself; (5) failed to submit a review by the FAA 

showing that TowerCo complied with FAA regulations pursuant to section 1212(E) 

of the Ordinance; (6) failed to comply with the requirements of section 1212(H) of 

the Ordinance by showing a “dust-proof surface” for the access road; and (7) 

presented sufficient evidence to show that the 190-foot tower was the minimum 

height needed to function effectively pursuant to section 1212(K) of the Ordinance.

The trial court determined that the Board did not err in finding 

TowerCo’s application incomplete and, therefore, rejecting its application. The trial 

court did not reach the question of whether the Board’s action in denying the 

application violates the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), 

nor did it address whether the Board’s findings with regard to the provisions of 

Section 403(F) of the Ordinance (relating to the general standards for conditional 

uses, i.e., that the conditional use is within the zoning district, harmonious with the 

township’s comprehensive plan, not hazardous or disturbing) are valid. On January 
4

30, 2017, the trial court denied TowerCo’s appeal and affirmed the decision of the 

Board. TowerCo now appeals to this Court.2

Before this Court, TowerCo initially contends that the trial court erred 

or abused its discretion in affirming the Board’s denial of TowerCo’s land use 

application to erect a Tower Facility in the Township when all conditional use 

requirements were met, and no evidence was presented showing, with a high degree 

of probability, that the Tower Facility would adversely impact the health, safety, and 

welfare of the community.

A conditional use is merely a special exception that falls within the 

jurisdiction of a municipality rather than a zoning hearing board. Williams Holding 

Group, LLC v. Board of Supervisors of West Hanover Township, 101 A.3d 1202, 

1212 (Pa. Cmwlth. 2014). “A conditional use is not an exception to a municipality’s 

zoning ordinance, ‘but rather a use to which [an] applicant is entitled provided the 

specific standards enumerated in the ordinance for the [conditional use] are met by 

the applicant.’” Id. (citation omitted). The applicant is entitled to approval if it 

meets its initial burden of demonstrating that the proposed use complies with the 

local ordinance’s specific criteria. Id. However, once the applicant meets its burden 

of proof, the conditional use may still be denied if the objectors demonstrate that the 

use would be detrimental to the public’s health, safety, and welfare. Id. 

 

2 Our review of a land use appeal in which the trial court has not taken any new evidence, 

is limited to determining whether the Board committed an error of law or abused its discretion. 

Williams Holding Group, LLC v. Board of Supervisors of West Hanover Township, 101 A.3d 1202, 

1211 n. 8 (Pa. Cmwlth. 2014). The Board “abuses its discretion when its necessary findings of 

fact are not supported by substantial evidence.” Id.
5

We note that “this Court may not substitute its interpretation of the 

evidence for that of the . . . [B]oard.” Taliaferro v. Darby Township Zoning Hearing 

Board, 873 A.2d 807, 811 (Pa. Cmwlth. 2005). The Board is the arbiter of credibility 

and determines the weight of the evidence presented. Id. The Board “is free to reject 

even uncontradicted testimony it finds lacking in credibility, including testimony 

offered by an expert witness. It does not abuse its discretion by choosing to believe 

the opinion of one expert over that offered by another.” Id. (citations omitted). 

Here, the Board determined that TowerCo failed to meet its initial 

burden because it did not meet all of the requirements contained in the Ordinance.3 

Initially, the Board determined that TowerCo did not meet the requirements for 

Section 1212(A) of the Ordinance, which provides that the:

Express standards and criteria for considering Conditional 

Use approval for communications facilities shall be as 

follows:

A. Proposed communications facilities. . . shall be located 

only in the R-1, C-1, I-1, I-2, and SD zoning districts. 

Proposed new communication towers must gain 

approval by Conditional Use from the Board of 

Supervisors of Cecil Township. As part of the 

Conditional Use application, the applicant shall

provide notification by Certified Mail of the intent to 

seek such approval. This notification shall be provided 

to all property owners within three hundred (300) feet 

of the property lines of the parcel on which the facility 

is to be located.... 

 

 

3 We will address only the relevant sections of the Ordinance, those which the Board and 

the trial court found that TowerCo did not meet.
6

(Ordinance, §1212(A).) TowerCo argues that the residents had actual notice because 

the Township’s zoning officer notified the residents of the second hearing. TowerCo 

further argues that the scheduled hearing notice was posted on the Property and was 

properly advertised. The Board made the following relevant findings of fact:

35. Applicant did not provide any evidence that it 

provided notification by Certified Mail of its intent to seek 

Conditional Use approval to all property owners within 

three hundred (300) feet of the property lines of the 

Property.

36. The Application evidences this non-compliance: 

“TowerCo has provided a list of all property owners within 

300 feet of the property lines of the parcel on which the 

communications tower is to be located.” Application, p.2.

37. Providing a list of residents to the Township does not 

meet the requirements of Section 1212(A) [of the 

Ordinance].

38. The list provided to the Township by Applicant did 

not accurately identify all property owners within 300 feet 

of the property lines of the parcel on which the 

communications tower is to be located.

39. Applicant had transposed a Tax Parcel ID Number 

and, as a result, provided an inaccurate list of residents to 

the Township.

40. The Board finds that the Applicant did not meet its 

burden in establishing compliance with Section 1212(A) 

of the Ordinance.

(Board’s Decision, F.F. Nos. 35-40, at 9.)

TowerCo does not contest these findings. Thus, the Board’s findings 

are at least technically correct. TowerCo argues only that actual notice was received 
7

by the property owners that are within 300 feet of the Property. However, the 

Ordinance requires the applicant provide notification by certified mail to all property 

owners within 300 feet. (See Ordinance, Section 1212(A).) Thus, the Board did not 

err in determining that TowerCo failed to meet the requirements of Section 1212(A) 

of the Ordinance.

Next, the Board determined that TowerCo failed to “demonstrate that 

it is licensed by the ... FCC... to operate a communications facility” pursuant to 

Section 1212(C) of the Ordinance. The Board found in pertinent part as follows:

51. Applicant[] claimed to submit FCC licenses along 

with the Application. Application, p.3.

52. Applicant[] did not submit an official FCC license[]. 

Application, Ex. C.

53. The documents submitted state: “This is not an 

official FCC license.” Application, Ex. C.

54. Applicant[] did submit four Radio Station 

Authorizations, that identify the Licensee as “Cellco 

Partnership”, with an address of 1120 Sanctuary PKWY, 

#150 GASA5REG. Alpharetta, GA 30009-7630. 

Application, Ex. C.

55. Applicant[’s] names are TowerCo 2013, LLC and 

Pittsburgh SMSA Limited Partnership d/b/a Verizon 

Wireless.

56. Applicant presented no credible evidence at the 

hearing that TowerCo ... and ...Verizon... are licensed by 

the FCC to operate a communications facility.

57. Absent supporting documentation, the Board does not 

find Applicant[’

]

s averments that it holds FCC licenses to 

be credible.
8

58. The Board finds that the Applicant did not meet its 

burden in establishing compliance with Section 1212(C) 

of the Ordinance.

(Board’s Decision, F.F. Nos. 51-58, at 10.) 

TowerCo contends that it provided evidence that it is licensed by the 

FCC and cites to the reproduced record (R.R.) at 48A-51A. However, a review of 

the record reveals otherwise. The FCC documents that TowerCo refers to state that 

“This is not an official FCC license.... [T]his document may not be used in place of 

an official FCC license.” (R.R. at 48A-51A.) The documents further reference a

license belonging to “CELLCO PARTNERSHIP” (CELLCO) and the record is 

devoid of any reference to CELLCO as a parent company or any other relation of 

Verizon or TowerCo. The Board did not err in its findings on this point.

Next, TowerCo contends that it provided proof “that the proposed 

communications facility complies with safety standards and electromagnetic field 

limits established by the [FCC]” pursuant to Section 1212(D) of the Ordinance. The 

Board found in pertinent part as follows:

59. Applicant submitted a letter dated August 11, 2015 

signed by RF System Design Manager, Jim Rickard that 

purportedly evidences compliance with all safety 

standards and electromagnetic field limits. Application, 

p.3.

60. The letter states, inter alia, that “Verizon Wireless has 

performed a radio frequency (RF) compliance preconstruction evaluation for the above-noted proposed site 

and based on the result of the evaluation, will be compliant 

with FCC Guidelines.” Application, Ex. D.
9

61. Applicant failed to provide a copy of the evaluation 

referenced in the letter.

62. Absent supporting documentation, the Board does not 

consider the conclusory statements set forth in the letter to 

be credible.

63. The Board finds that the Applicant did not meet its 

burden in establishing compliance with Section 1212(D) 

of the Ordinance.

 

(Board’s Decision, F.F. Nos. 59-63, at 11.) A review of the record reveals that the 

letter submitted by TowerCo was conclusory and not verified or supported by any 

other documentation. The Board did not err in determining that TowerCo’s evidence 

of compliance with FCC standards was insufficient.

Next, TowerCo contends that it provided proof “that the 

communications facility has been reviewed, and has not been determined to be a 

hazard, by the Federal Aviation Administration (FAA) [and that] [t]he 

communications tower shall meet all FAA regulations and any Airport Zoning 

Regulations” pursuant to Section 1212(E) of the Ordinance. The Board found in 

pertinent part as follows:

64. Applicant submitted a document entitled “FAA 

Aeronautical Evaluation.” Application, p.3; Application, 

Ex. E.

65. The submitted document was not drafted by the FAA. 

Application, Ex. E.

66. The submitted document was drafted by a company 

called “sitesafe”. Application, Ex. E.

67. The document specifically states:
10

Note: This report is for planning purposes only. If 

notification to the FAA or FCC is submitted on a 

site (whether it is or is not required), a determination 

of no hazard or an approval letter should be received 

prior to any actions taken on this site.

Application, Ex. E.

68. By its terms, the evidence submitted by the Applicant 

does not meet the requirements of Section 1212(E) [of the 

Ordinance].

69. Applicant did not submit any credible evidence 

indicating that the communications facility has been 

reviewed, and has not been determined to be a hazard, by 

the [FAA] as required by Section 1212(E) [of the 

Ordinance].

70. The Board finds that the Applicant did not meet its 

burden in establishing compliance with Section 1212(E) 

of the Ordinance.

(Board’s Decision, F.F. Nos. 64-70, at 11-12.) 

TowerCo argues that the FAA preempts relevant safety regulations and 

establishes a complete safety standard for air transportation that is not subject to 

variation among jurisdictions, and the Tower Facility has been determined to be no 

hazard to air navigation. However, the Ordinance requires the FAA’s review, not a 

private company’s review. Thus, the Board did not err in determining that TowerCo 

failed to meet this requirement of Section 1212(E) of the Ordinance.

Finally, TowerCo argues that it did prove that the access drive would 

be “dust-proof” as required under Section 1212(H) of the Ordinance, which states in 

part that “Said access drive shall be composed of an all-weather, dust-proof surface.” 
11

TowerCo presented the testimony of Tim Stark, a Site Acquisition Specialist from 

Wireless Resources, Inc., who was asked what type of dust-free access road they 

were planning to build, “pavement? Concrete?” (R.R. at 106A.) Mr. Stark stated 

that the road would be gravel. (Id.) Mr. Stark further testified that the excavation 

of the easement would occur six inches below grade and would include four inches 

of “number three” stone and two inches of number “2A” stone. (Id. at 107A.) Thus, 

Mr. Stark concluded that the access easement would have a six-inch gravel surface 

with a geoliner fabric underneath. (Id.) This was all of the testimony on this subject. 

The Board found in pertinent part as follows:

90. Applicant did not submit any evidence that the

proposed gravel road is composed of an all-weather, dustproof surface.

91. The Board finds that the Applicant did not meet its 

burden in establishing compliance with Section 1212(H) 

of the Ordinance.

 

(Board’s Decision, F.F. Nos. 90-91, at 14.) 

The trial court determined that the Board, “[i]n light of the extensive 

experience [it has] with roads of all types of surface and construction,” did not abuse 

its discretion in finding the gravel surface was not “dust-proof” as required in the 

Ordinance. The Board is the fact-finder and determines the credibility of witnesses 

and the weight of the evidence. Taliaferro, 873 A.2d at 811. Thus, it was within the 

Board’s discretion to determine that TowerCo failed to present sufficient evidence 

to show that the gravel road would be an all-weather, dust-proof surface. 
12

Next, TowerCo contends that the trial court erred or abused its 

discretion by failing to consider the Board’s denial of TowerCo’s conditional use 

application to erect a Tower Facility in the Township a violation of the 

Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7). 

However, because TowerCo did not raise this issue in its Pa. R.A.P. 

1925(b) statement of errors complained of on appeal, the issue is waived before this 

Court. See Sung E. Choe v. Philadelphia Board of License & Inspection, 847 A.2d 

214, 217-18 (Pa. Cmwlth. 2004) (holding that issues not raised in the Pa. R.A.P. 

1925(b) statement are waived on appeal).

Accordingly, we must affirm the trial court’s decision.

__________________________________

J. WESLEY OLER, JR., Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

TowerCo 2013 LLC, :

Appellant :

:

v. : No. 239 C.D. 2017

:

Cecil Township Board of Supervisors :

O R D E R

AND NOW, this 8

th day of December, 2017, we hereby affirm the 

January 30, 2017 order of the Court of Common Pleas of Washington County in the 

above-captioned matter.

__________________________________

J. WESLEY OLER, JR., Senior Judge