Background
Gazi Abdulhay, Ali Abdulhay, Nabil Abdulhay, and Valley Land Holdings, LLC (collectively, Objectors) challenged the Upper Macungie Township Zoning Hearing Board’s grant of three variances allowing Verizon Wireless to construct a 190-foot commercial cell tower in the Township’s RU3 rural zoning district. The requested variances were substantial: a use variance (commercial towers are not a permitted use in RU3), a dimensional height variance (the district caps towers at 50 feet), and an access-driveway variance (commercial driveways are prohibited in residential zones). Verizon’s radio-frequency engineer testified that the area’s difficult topography caused dropped calls and weak or absent signals, that the subject Property was the only viable site given its central location within the coverage gap, and that the proposed height was the minimum necessary to connect the district to Verizon’s existing network.
The Board granted the variances, analyzing the application jointly under the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §§ 10101–11202, and the federal Telecommunications Act of 1996 (TCA), 47 U.S.C. § 332(c)(7). The Court of Common Pleas of Lehigh County affirmed without additional evidence. The Commonwealth Court granted en banc review. Objectors argued that Verizon failed to show property-specific hardship as required by the MPC and that the Board improperly relied on TCA policy to substitute for that analysis.
The Court’s Holding
The Commonwealth Court (en banc, seven judges), in a majority opinion by Judge Fizzano Cannon, affirmed the grant of variances—but on a different analytical framework than either the Board or Common Pleas used.
On the MPC variance requirements, the majority held that Verizon failed to satisfy the property-hardship element. Section 910.2(a)(1) of the MPC, 53 P.S. § 10910.2(a)(1), requires the applicant to show unique physical circumstances or conditions of the property itself that create unnecessary hardship. The Board erred by finding “hardship” based on the public’s need for improved cell service and Verizon’s engineering constraints—neither of which constitutes a hardship to the property as the MPC requires. Because no property-specific hardship evidence was offered, the MPC variance elements were not satisfied on their own terms. The related driveway and height variances, which depended on the tower use variance, stood or fell with it.
The TCA provides an independent basis for zoning relief where a carrier can show that denial would “prohibit or have the effect of prohibiting the provision of personal wireless services,” 47 U.S.C. § 332(c)(7)(B)(i)(II). Following the Supreme Court’s overruling of Chevron deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), Pennsylvania courts must independently construe this provision rather than defer to FCC interpretations. The majority rejected the Third Circuit’s FCC-based “materially inhibit” standard from Cellco Partnership v. White Deer Township Zoning Hearing Board, 74 F.4th 96 (3d Cir. 2023), as dependent on Chevron deference. Drawing instead from APT Pittsburgh Ltd. Partnership v. Penn Township, 196 F.3d 469 (3d Cir. 1999), the court adopted a two-part test: a carrier seeking TCA-based variance relief must show (1) a significant gap in wireless coverage, and (2) that the proposed facility is the least intrusive means of filling that gap. Verizon satisfied both elements; Objectors offered no evidence of alternative sites, structures, or configurations that could close the gap less intrusively.
President Judge Cohn Jubelirer concurred in the affirmance but wrote at length to dispute both analytical steps. She argued that requiring carriers to first attempt and fail a property-hardship analysis wastes resources and contradicts the TCA’s mandate to encourage rapid deployment of telecommunications technology. She also contended the majority overread Loper Bright: the Third Circuit in Cellco exercised independent statutory judgment—not mere deference—in adopting “materially inhibit,” relying on the canon that the identical “effect of prohibiting” phrase in § 253(a) (already uniformly interpreted to mean “materially inhibits”) should carry the same meaning in § 332(c)(7)(B)(i)(II). The concurrence viewed the majority’s coverage-gap test as an outdated relic of the early cellular era, inadequate for a world focused on capacity, 5G, and service improvement rather than filling blank spots on coverage maps.
Key Takeaways
- Pennsylvania applies a two-step framework for wireless tower variance disputes: the applicant must first attempt to satisfy the MPC’s five-part variance test (including property-specific hardship); if those requirements are not met, the TCA provides a separate basis for relief under the two-part APT Pittsburgh test—significant coverage gap plus least-intrusive-means of filling it.
- Post-Loper Bright, Pennsylvania courts owe no Chevron deference to FCC interpretations of TCA provisions; the Third Circuit’s “materially inhibit” standard from Cellco does not govern Pennsylvania state court proceedings.
- Objectors challenging a wireless tower variance must affirmatively rebut the carrier’s least-intrusive-means showing by identifying alternative sites, colocation opportunities, or reduced-height solutions; silence on the issue will not prevent TCA-based relief.
- The concurrence by President Judge Cohn Jubelirer frames the majority’s framework as contrary to the TCA’s text and purpose and signals that this issue is ripe for Pennsylvania Supreme Court review.
Why It Matters
Abdulhay is Pennsylvania’s first appellate decision to apply Loper Bright to TCA wireless facility siting, and it creates a notable divergence from the Third Circuit. Carriers that cannot satisfy property-based MPC hardship—which will frequently be the case, because the hardship driving tower placement is engineering and coverage-based, not tied to property conditions—now face an additional analytical step before TCA protections engage. Municipalities gain leverage in the first MPC step. Carriers may be tempted to bypass this two-step framework by filing in federal court, where the “materially inhibit” standard applies and the MPC detour is unnecessary. The concurrence specifically identifies this forum-shopping risk, noting that legal outcomes should not hinge on courthouse selection.
With a full en banc panel producing a majority opinion and a vigorous concurrence from the presiding judge disputing both steps of the analysis, the issue is exceptionally well-positioned for Pennsylvania Supreme Court review. Municipalities and wireless carriers planning tower siting proceedings in Pennsylvania should treat this decision as interim guidance pending that review.