1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HORVATH TOWERS III, LLC, : No. 4:16-CV-00421

:

Plaintiff, : (Judge Brann)

:

v. :

:

ZONING HEARING BOARD OF :

MONTOURSVILLE BOROUGH, :

:

Defendant. :

MEMORANDUM

October 18, 2016

Before the Court for disposition is Defendant Zoning Hearing Board of 

Montoursville Borough’s (“Defendant”) Motion to Dismiss pursuant to Federal 

Rule of Civil Procedure 12(b)(6).1 For the following reasons, Defendant’s Motion 

to Dismiss will be granted in part and denied in part.

I. BACKGROUND2

Plaintiff Horvath Towers III, LLC (“Plaintiff”) is a Delaware limited 

liability corporation which specializes in the ownership, operation, construction, 

and maintenance of wireless communication towers.

3

 Specifically, Plaintiff 

regularly leases real estate on which it constructs towers, and thereafter sublets 

 

1

 Defs.’ Mot. to Dismiss (ECF No. 11).

2

 For purposes of this Motion to Dismiss, the allegations presented in Plaintiffs' Complaint will 

be taken as true, and all inferences will be construed in the light most favorable to Plaintiffs.

3

 Compl. (ECF No. 1) ¶¶ 1, 5, at 1,3.

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tower usage to FCC-licensed personal wireless service providers such as Limitless 

Wireless and Verizon Wireless.4 Construction of these wireless towers is 

necessary to house antennae and related equipment essential to the seamless 

provision of wireless telephone services and high-speed data internet services.

5

 

The antennae and related equipment located within a single wireless tower 

constitute a “cell site,” with the surrounding area of service provided known as a 

“cell.”6 Cells, in turn, must continuously overlap in a fashion approximating a 

honeycomb to provide dependable service.7 Any mobile telephone call must occur 

within two miles of a cell site to guarantee a reliable connection and avoid the 

frustration of interrupted service.8

The events giving rise to this Complaint began on September 20, 2013 with 

the consummation of a lease agreement between Plaintiff and the Willing Hand 

Hose Company No. #1, Inc.

9

This lease permitted Plaintiff to erect a 145-foot 

stealth monopole tower at Willing Hand Hose Company’s 821 Broad Street, 

Montoursville, Pennsylvania property.

10 Within the proposed tower at various 

locations up and down its expanse, numerous antennae were to be concealed to

ensure wireless communications services while preserving the tower’s flag pole-

 

4

 Id. ¶¶ 6–8, at 3.

5

Id. ¶ 11, at 4.

6

 Id. 

7

 Id. ¶ 12, at 4.

8

 Compl. ¶ 13, at 4.

9

 Id. ¶ 17, at 5–6.

10

 Id. ¶¶ 19, 22, at 6.

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like disguise.11 This cell tower, and its related equipment, would occupy a total 

area within the property of 48-feet by 72.92-feet.12 The governing Lease 

agreement is effective for an initial ten-year period, with three options to renew for

five years, succeeded by one additional four-year option to renew. Following the 

expiration of a possible 29 year term, full possession of the area would return to 

Willing Hand Hose Company No. #1, Inc., and the cell tower would be removed.13

Construction of this cell tower in accord with the lease agreement, however, 

would be in contravention of the Borough of Montoursville’s zoning ordinances as 

enforced by Defendant Zoning Hearing Board. Specifically, within the zoning 

district in which the proposed cell tower was to be constructed—Broad Street 

Commercial Zoning District (BSC Zoning District), Section 10.2.2.1 of the 

Montoursville Borough Zoning Ordinance authorizes communication towers by 

“Conditional Use” when operated for “Government Use only.”

14 “Nongovernment Use Only” communication towers, such as the proposed cell tower 

here, are restricted to two of Montoursville’s ten zoning districts—the Recreation 

(R) District and the Industrial (I) District.15 

Because of the restriction this ordinance placed on the construction of the 

cell tower, Plaintiff, on March 13, 2015, filed an application both challenging the 

 

11

 Id. ¶ 22. 

12

 Id. ¶ 19.

13 Compl. ¶ 21–22, at 6.

14

 Id. ¶ 25, at 7.

15

 Id. ¶ 26, at 7

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validity of the Section 10.2.2.1 Ordinance, and requesting dimensional variances 

from the ordinance which would permit the construction of the cell tower.16 

Plaintiff challenged the ordinance on grounds that (1) logistical and additional 

zoning restrictions on the placement of communication towers in the Recreation 

(R) District and Industrial (I) District create a de facto prohibition of a “nonGovernment Use Only” tower, and (2) the restriction set forth in Section 10.2.2.1 

unconstitutionally confines communication towers to those that are for 

“Government Use Only.”17 

Defendant subsequently held hearings on June 9, 2015, July 22, 2015, and 

November 24, 2015, and allowed for the introduction of evidence pertaining to

these challenges.

18

 On February 9, 2016, Defendant denied Plaintiff’s application 

in its entirety, thus preventing the construction of the proposed cell tower.19

On March 9, 2016, Plaintiff filed a complaint against Defendant Zoning 

Hearing Board of Montoursville Borough.20 Plaintiff’s Complaint asserted the 

following three claims against Defendant: (1) a violation of Section 704 of the 

Telecommunications Act of 1996 (“TCA”) for lack of “substantial evidence” 

supporting Defendant’s decision; (2) a violation of Section 704’s prohibition 

against “unreasonable discrimination” among providers of functionally equivalent 

 

16

 Id. ¶¶ 28–29, at 7–9.

17

 Id.

18

 Id. ¶ 30–31, at 9–12.

19

 Compl. ¶ 32, at 13.

20

 Compl. (ECF No. 1).

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services; and (3) an appeal under state law concerning Defendant’s zoning 

decision.21 On May 3, 2016, Defendant filed a Motion to Dismiss under Federal 

Rule of Civil Procedure 12(b)(6) seeking the dismissal of Plaintiff’s Complaint in 

its entirety.

22

 This Motion has since been fully briefed, and the issue is now ripe 

for this Court’s disposition.

II. DISCUSSION

A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a 

motion to dismiss for “failure to state a claim upon which relief can be granted.” 

Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation 

by dispensing with needless discovery and factfinding.”23 “Rule 12(b)(6) 

authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”24 

This is true of any claim, “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.”25

Beginning in 2007, the Supreme Court of the United States initiated what 

some scholars have termed the Roberts Court’s “civil procedure revival” by 

significantly tightening the standard that district courts must apply to 12(b)(6) 

 

21

 Id. ¶¶ 38, 52, & 58, at 14, 17, & 19.

22

 ECF No. 11.

23

 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.) 

(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, 

J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

24

 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

25

 Neitzke, 490 U.S. at 327.

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motions.26 In two landmark decisions, Bell Atlantic Corporation v. Twombly and 

Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by 

“signal[ing] to lower-court judges that the stricter approach some had been taking 

was appropriate under the Federal Rules.”27 More specifically, the Court in these 

two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. 

Gibson and replaced it with a more exacting “plausibility” standard.28

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 

to relief that is plausible on its face.’”29 “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”30 “Although the 

plausibility standard does not impose a probability requirement, it does require a 

pleading to show more than a sheer possibility that a defendant has acted 

unlawfully.”31 Moreover, “[a]sking for plausible grounds . . . calls for enough facts 

to raise a reasonable expectation that discovery will reveal evidence of 

 

26

 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 

313 (2012).

27

 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

28

 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that 

Twombly retired the Conley no-set-of-facts test”).

29

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

30

 Iqbal, 556 U.S. at 678.

31

 Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal 

quotations and citations omitted).

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[wrongdoing].”32

The plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”33 No 

matter the context, however, “[w]here a complaint pleads facts that are ‘merely 

consistent with’ a defendant’s liability, it ‘stops short of the line between 

possibility and plausibility of entitlement to relief.’”34

When disposing of a motion to dismiss, a court must “accept as true all 

factual allegations in the complaint and draw all inferences from the facts alleged 

in the light most favorable to [the plaintiff].”35 However, “the tenet that a court 

must accept as true all of the allegations contained in the complaint is inapplicable 

to legal conclusions.”36 “After Iqbal, it is clear that conclusory or ‘bare-bones’ 

allegations will no longer survive a motion to dismiss.”37 “Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”38

As a matter of procedure, the United States Court of Appeals for the Third 

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a 

 

32

 Twombly, 550 U.S. at 556.

33

 Iqbal, 556 U.S. at 679.

34

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

35

 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

36

 Iqbal, 556 U.S. at 678 (internal citations omitted).

37

 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

38

 Iqbal, 556 U.S. at 678.

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court reviewing the sufficiency of a complaint must take three 

steps. First, it must tak[e] note of the elements [the] plaintiff must 

plead to state a claim. Second, it should identify allegations that, 

because they are no more than conclusions, are not entitled to the 

assumption of truth. Finally, [w]hen there are well-pleaded factual 

allegations, [the] court should assume their veracity and then 

determine whether they plausibly give rise to an entitlement to 

relief.39

B. Analysis

Based on a review of the factual allegations of the Complaint read in 

conformity with the Twombly-Iqbal standard of pleading, the Court determines 

that Plaintiff has alleged facts sufficient to make “plausible on its face” its claim 

under the “substantial evidence” provision of the TCA and its state law-based 

zoning appeal. To that extent, then, the Motion to Dismiss is denied.

Plaintiff, however, has failed to adduce facts which, when read in the light 

most favorable and with an assumption of veracity, make plausible its claim under 

the “unreasonable discrimination” provision of the TCA. This claim will, 

therefore, be dismissed under Federal Rule of Civil Procedure 12(b)(6). 

The Telecommunications Act of 1996 created “a pro-competitive, deregulatory national policy framework designed to rapidly accelerate private sector 

deployment of advanced telecommunications and information technologies and 

services to all Americans by opening all telecommunications markets to 

 

39

 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

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competition.”40 The TCA accomplished this end by lessening the traditional 

deference paid to state and local authorities in favor of advancing the development 

of telecommunications facilities.41 Specifically, the TCA provides numerous 

statutory protections to an applicant seeking from a state or local authority either a 

permit or rezoning in order to construct a wireless facility.42 Of those protections, 

Plaintiff in the instant case seeks relief under the “substantial evidence,” and the 

“unreasonable discrimination” provisions of Section 704. The sufficiency of these 

claims in light of Defendant’s Motion to Dismiss will be examined below. 

1. Plaintiff Has Alleged a Plausible Claim Under the 

“Substantial Evidence” Provision of Section 704 of the 

Telecommunications Act of 1996.

Following the three step procedure outlined by the Third Circuit in Connelly 

v. Lane Const. Corp., the Court concludes that Plaintiff has alleged within its 

complaint sufficient facts to make its claim under the “substantial evidence” 

provision of the TCA plausible on its face.

The “substantial evidence” provision, codified at 47 U.S.C. 

§ 332(c)(7)(B)(iii), requires that any decision by a state or local governing body be 

both in writing and supported by “substantial evidence” within the written record.43 

 

40

 APT Pittsburgh Ltd. P’ship v. Penn Tp., 196 F.3d 469, 473 (3d Cir. 1999) (quoting H.R. 

Conf. Rep. No. 104–458 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 1124).

41

 Global Tower, LLC v. Hamilton Tp., 897 F.Supp.2d 237, 250 (M.D.Pa. 2012) (Caputo, J.) 

(quoting Ogden Fire. Co. No. 1 v. Upper Chichester Twp., 504 F.3d 370, 379 (3d Cir. 2007)).

42

 See generally 47 U.S.C. § 332(c).

43

 47 U.S.C. § 332(c)(7)(B)(iii).

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“Substantial evidence,” a legal term of art, requires “more than a scintilla of 

evidence, but less than a preponderance.”44 When making the ultimate 

determination of whether “substantial evidence existed to support a denial by a 

state or local authority, the Court must find “such evidence as a reasonable mind 

might accept as adequate to support a conclusion.”45 Such a determination must be 

based on the entire record and take into account evidence unfavorable to the 

agency’s decision.46 When conflicting evidence is present, the factfinder must 

have adequately explained its reasoning for rejecting or discrediting otherwise 

competent evidence.47

Plaintiff alleges that Defendant Zoning Hearing Board lacked substantial 

evidence when it denied Plaintiff’s application challenging the ordinance as de 

facto exclusionary, a violation of the TCA, and as an unconstitutionally invalid 

exercise of zoning authority.

48

 Plaintiff specifically asserts that Defendant (1) 

made findings of fact not supported by substantial evidence, (2) gave weight to and 

deemed certain evidence credible that a reasonable person could not have accepted 

 

44

 Global Tower, LLC, 897 F.Supp.2d at 251(citing Omnipoint Commc’ns Enters., L.P. v. 

Zoning Hearing Bd., of Easttown Twp., 248 F.3d 101, 106 (3d Cir. 2001)).

45

 Id.

46

 Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Twp., 181 F.3d 403, 408 (3d Cir. 

1999)(citing Am. Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981)).

47 Global Tower, 897 F.Supp.2d at 251(citing Cellular Tel. Co. v. Zoning Bd. of Adjustment of 

the Borough of Ho–Ho–Kus, 197 F.3d 64, 71 (3d Cir. 1999)).

48

 Compl. ¶¶ 39–43, at 14–15.

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as credible, and (3) ignored otherwise uncontradicted evidence.49 Defendant, in 

turn, argues for dismissal of this claim based on a finding that substantial evidence 

supported Defendant’s decision to deny the application in its entirety. 

Because the entire factual record upon which Defendant based its decision is 

not presented, the Court cannot make the determination sought by Defendant 

concerning the sufficiency of evidence upon which it based its denial of Plaintiff’s 

application.50 While Plaintiff has attached to its Complaint a copy of the Zoning 

Hearing Board of Montoursville’s Written Decision which contains reference to 

some of the evidence presented at the hearings, the Complaint makes reference to 

thirteen exhibits presented to Defendant.51 These exhibits, hearing transcripts, and 

any other evidence consisting of the full factual record presented to Defendant at 

the hearing are necessary for a determination at the summary judgment stage as to

whether “substantial evidence” supported Defendant’s denial.52 At this stage of the 

litigation, however, Plaintiff, through its factual averments questioning the

sufficiency of evidence and reference to exhibits supporting its position, has 

 

49

 Id. ¶¶ 40–42, at 15.

50

 USCOC of Greater Missouri, L.L.C. v. Village of Marlborough, Missouri, 618 F.Supp.2d 

1055, 1064 (E.D.Mo. 2009) (denying a motion to dismiss plaintiff’s claim under the substantial 

evidence provision where the Court lacks the full record of the proceeding).

51

 Compl. ¶ 31, at 9–12.

52

 While a presentation of the entire factual record is necessary to determine the existence of 

substantial evidence supporting Defendant’s decision, the Court notes that evidence beyond this 

record or in any way bolstering the evidence presented is not permitted. APT Pittsburgh Ltd. 

P’ship, 32 F.Supp.2d at 795 (concluding that the TCA does not contemplate the establishment of 

a discovery period).

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satisfied the Twombly–Iqbal plausibility requirements concerning both its de facto

exclusionary and constitutional challenges. Defendant’s Motion to Dismiss this 

claim will therefore be denied as to Plaintiff’s TCA claim under the “substantial 

evidence” provision.

2. Plaintiff Has Not Alleged a Plausible Claim Under the 

“Unreasonable Discrimination” Provision of Section 704 of 

the Telecommunications Act of 1996.

Plaintiff has failed to state a plausible claim for relief under the 

“unreasonable discrimination” provision of Section 704.

The TCA “unreasonable discrimination” provision prohibits a state or local 

authority from unreasonably discriminating “among providers of functionally 

equivalent services.”53 To establish a plausible claim for relief under this 

provision, a plaintiff must allege sufficient facts indicating: (1) that defendants 

discriminated against them in favor of another provider of functionally equivalent 

services, and (2) that such discrimination was “unreasonable.”54 The TCA 

contemplates that some discrimination is allowed so long as it is “reasonable.”55

Here, even when viewing all allegations of its complaint in a light most 

favorable, Plaintiff has failed to allege a plausible claim under the TCA 

“unreasonable discrimination” provision. Plaintiff specifically claims that 

 

53

 47 U.S.C. § 332(c)(7)(B)(i)(I).

54

 Global Tower, LLC, 897 F.Supp.2d at 254.

55 Id.

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Defendant ran afoul of this provision by discriminating, within the zoning district 

of the proposed tower, between “Government Use Only” and “Non Government 

Use Only” cell towers.

56

 This factual allegation, however, fails to indicate that 

Plaintiff has been discriminated against in favor of a provider of a functionally 

equivalent service. In Omnipoint Communications, Inc. v. City of Scranton, the 

Honorable Thomas I. Vanaskie formerly of this Court addressed a plaintiff’s 

argument that the defendant city violated the “unreasonable discrimination” 

provision by potentially allowing public utilities to construct telephone poles and 

wires while prohibiting wireless communication towers in the same zoning 

district.57 In rejecting this argument, Judge Vanaskie wrote that the legislative 

history of the TCA indicated that the unreasonable discrimination provision 

applied only to discrimination among wireless service providers.58 

In the matter at hand, Plaintiff has failed to allege that Defendant 

discriminated in favor of another wireless service provider. Instead, Plaintiff 

appears to allege unreasonable discrimination based upon the ordinance’s

government versus non-government use distinction. This allegation fails as a 

 

56

 Compl. ¶ 51, at 17.

57

 Omnipoint Commc’ns, Inc. v. City of Scranton, 36 F.Supp.2d 222, 234 (M.D.Pa. 1999) 

(Vanaskie, J.).

58

 Id. (quoting H.R.Conf.Rep. No. 104–458, 104th Cong., 2d Sess. 208 (1996), 1996 

U.S.C.C.A.N. 124, 221–22) (“While utilizing the term ‘functionally equivalent services' the 

conferees are referring only to personal wireless services as defined in this section that directly 

compete against one another.”).

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matter of law to establish a plausible claim,59 and will be dismissed pursuant to 

Federal Rule of Civil Procedure 12(b)(6).

3. Plaintiff Has Alleged a Plausible State Law-Based Zoning 

Appeal Under the Municipalities Planning Code.

Because this Court has found plausibility concerning Plaintiff’s TCA 

“substantial evidence” claim, the same result is logically required for Plaintiff’s 

analogous state-law based zoning appeal.

Under Pennsylvania law, court review of a zoning board’s decision is 

limited to the determination of whether the board has committed an abuse of 

discretion or an error of law.60 In order to determine whether the board has abused 

its discretion, a court must determine whether the decision is supported by 

“substantial evidence.”

61 Substantial evidence is “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.”

62

In the above discussion concerning Plaintiff’s claim under the “substantial 

evidence” provision of the TCA, I indicated that, although I could not determine

 

59

 USCOC of Greater Missouri L.L.C., 618 F.Supp.2d at 1063 (dismissing a claim under the 

“unreasonable discrimination” provision where plaintiff failed to allege that another wireless 

service provider was granted a permit over plaintiff); Sprint Spectrum L.P. v. Board of Zoning 

Appeals of Town of Brookhaven, 244 F.Supp.2d 108, 117 (E.D.N.Y. 2003) (granting summary 

judgment in the absence of evidence that defendant allowed another wireless service provider to 

construct a monopole in the same proposed site area as plaintiff’s proposed tower).

60 Hertzberg v. Zoning Bd. of Adjustment, 721 A.2d 43, 46 (1998) (citing Larsen v. Zoning Bd. 

of Adjustment, 672 A.2d 286, 288 (1996)).

61

 Albert v. Zoning Hearing Bd. of North Abington Tp., 854 A.2d 401, 446 (Pa. 2004).

62 Hertzberg, 721 A.2d at 46 (citing Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 

Pa. 550, 555, 462 A.2d 637 (1983)).

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whether substantial evidence supported Defendant’s denial of Plaintiff’s 

application, Plaintiff had nevertheless established a plausible claim for relief. 

Because the determination of a zoning appeal requires an identical determination 

concerning the presence of supporting substantial evidence, logic dictates the same 

finding, i.e. a plausible claim for relief from Defendant’s zoning denial has been 

alleged. This claim can be most effectively determined at the summary judgment 

stage of litigation when the Court benefits from a review of the full factual record. 

III. CONCLUSION

Based on the above discussion, Defendant’s Motion to Dismiss will be

granted in part and denied in part. The Motion is granted with respect to Plaintiff’s 

claim under the “unreasonable discrimination” provision of the TCA, at 47 U.S.C. 

§ 332(c)(7)(B)(i)(I). The Motion is denied with respect to the remaining two 

claims contained within Plaintiff’s Complaint.

An appropriate Order follows.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

 United States District Judge

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