Pittsburgh, PA
The Legal Intelligencer
(by Jenn Malik and Anna Jewart)
For most projects in Pennsylvania, deviation from the requirements of a zoning ordinance requires a variance under the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq.(“MPC”). To obtain a variance, an applicant must meet all five criteria articulated in Section 910.2(a) of the MPC, including the “hardship criterion” – requiring that applicants demonstrate “unique physical . . . conditions. . . peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance . . .” 53 P.S. §10910.2(a)(1). In rare circumstances, state or federal law may provide additional protections for a particular use outside of the MPC’s variance process. Recently, the Commonwealth Court considered a matter involving local permitting for a cell tower which examined the interplay between the MPC and the federal Telecommunications Act of 1996, 47 U.S.C. §§151-624 & 641-646 (“TCA”). See T-Mobile S., LLC v. City of Roswell. Ga. 574 U.S. 293, 300 (2015) (the TCA is a limitation on the “’authority of state and local governments to regulate the location, construction, and modification’ of wireless communications facilities”).
Under the TCA, state and local governments retain general zoning authority; however, the TCA expressly limits that authority, stating “regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof — (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. §332(c)(7)(A , §332(c)(7)(B)(i)(I-II).
The Federal Communications Commission (“FCC”) opined that a local government impermissibly prohibits wireless communication services where (i) a provider shows such relief is necessary to cover a gap in that provider’s coverage or (ii) to allow the provider to improve service to compete with other providers. The FCC’s position statements regarding the TCA would previously have been entitled to deference under the Chevron doctrine, a rule requiring judicial deference to a federal administrative agency’s reasonable interpretation of the silent or ambiguous portions of the federal laws it administers (“Chevron Deference”). Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.467 U.S. 837 (1984). However, in 2024, SCOTUS overruled Chevron in Loper Bright Enterprise. v. Raimondo, holding the judiciary “must exercise. . . independent judgment in deciding whether an agency has acted within its statutory authority. . .” 603 U.S. 369, 412 (2024). Under Loper, courts may consider an agency’s interpretation of a federal statute, but “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
While the TCA’s impact on local zoning has previously been considered by the Commonwealth Court under Chevron, a recent land use appeal called into question the impact of the TCA on local zoning post-Loper. Abdulhay v. Upper Macungie Township Zoning Hearing Board, No. 1313 C.D. 2024 (Pa. Cmwlth. July 1, 2026).
In Abdulhay, the Upper Macungie Township Zoning Hearing Board (“ZHB”) granted Verizon Wireless (“Applicant”) a use variance, height variance, and a variance to allow construction of a driveway in the Township’s RU3 Zoning District (“Decision”). Specifically, the ZHB found that the Applicant met all requirements for a variance under the MPC and also found the applicant was entitled to relief under the TCA. On appeal, the trial court affirmed, finding that approving the variance “prevented a material inhibition of providing personal wireless services” and that the TCA compelled the ZHB to grant the variances. Objectors to the project appealed to the Commonwealth Court. The Commonwealth Court affirmed the trial court’s order “albeit on a somewhat different basis” both in terms of diversion from the Lower Court’s reasoning, and the differences between the Majority Opinion, authored by Judge Fizzanno Cannon, and the Concurring Opinion, authored by President Judge Cohn Jubelirer.
In the Majority Opinion, the Court found no evidence concerning unique circumstances of the Property itself justifying a variance under the MPC. Instead, the Court found the only evidence of hardship was related to Applicant’s alleged gap in cell service. Thus, the Commonwealth Court determined the Applicant failed to establish entitlement to a variance under the MPC.
The Court then analyzed whether the Applicant was entitled to separate relief under the TCA. In prior cases with similar fact patterns, most notably in Fairview Township v. Fairview Township Zoning Hearing Board, 233 A.3d 958 (Pa. Cmwlth. 2020), the Court relied on the FCC’s opinions and interpretations in analyzing whether a land use applicant was entitled to relief under the TCA. However, due to the abrogation of the Chevron Deference by Loper, the Majority in Abdulhay concluded that its analysis in Fairview Township was not fully applicable. The Court also looked to other courts for guidance such as Cellco Partnership v. White Deer Township Zoning Hearing Board, 74 F.4th 96 (3d Cir. 2023) (“Cellco”), APT Pittsburgh Ltd. P’ship v. Penn Township,196 F.3d 469 (3d Cir. 1999) (“APT”), and Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2d Cir. 1999) (“Willoth”). In so doing, both the Majority and Concurring Opinions sought to adopt a test to accommodate the dual, yet perhaps contradictory goals of the TCA to: (i) facilitate nationally the growth of wireless telephone service; and, (ii) maintain substantial local control over the siting of towers. The Majority Opinion rejected the Cellco Court’s reasoning on the basis that it had relied on the Chevron Deference to apply the FCC’s “materially inhibit” standard, i.e. local government action “constitutes an effective prohibition [on wireless communications towers] if it materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory market” (“Cellco Test”). Instead, the Majority Opinion was persuaded by APT and Willoth, with the Majority noting these opinions were adopted based on factors other than deference to the FCC’s interpretation of the TCA.
Ultimately, the Majority adopted the “Willoth Analysis”, where “[f]irst, the provider must prove there is a significant gap in wireless service, and second, the provider must show it is filling that gap in the least intrusive manner.” The Majority concluded “a proper analysis required, first, a determination of whether Applicant met the MPC [variance] requirements” and if “those requirements had been met, no TCA analysis would have been needed.” The Court found the ZHB “essentially substituted a portion of a TCA analysis for an MPC hardship analysis” holding that the ZHB must determine whether an Applicant is entitled to relief under the TCA separately from the variance analysis “by demonstrating that there is a significant coverage gap and that Applicant’s proposal would fill that gap by the least intrusive means.” While the Majority found the ZHB did not correctly separate the TCA and MPC analyses, it concluded the Applicant was entitled to relief under the TCA.
The Concurring Opinion agreed that the Applicant was entitled to relief under the TCA, but ultimately found the Majority’s reliance on the Willoth Analysis to be “contrary to the text, intent and purpose of the TCA.” Judge Cohn Jubelirer reasoned that Loper did not require the Majority to reject prior precedent such as Cellco on the basis that the decision afforded the FCC’s interpretation deference, but rather that Loper required reviewing courts to exercise its independent judgment – which may be informed or guided by an agency’s interpretation. Therefore, the Concurring Opinion held the Cellco Test, which interpreted the “effect of prohibiting” in Section 332(c)(7)(B)(i)(II) of the TCA to mean “materially inhibits” is more consistent with the TCA. Judge Cohn Jubelirer opines that the Cellco Test better protects the forward-looking nature of the TCA which is intended to provide a “pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications.”
While the Majority and Concurring Opinions did not agree in reasoning, they did agree the Applicant demonstrated entitlement to relief under the TCA. The lack of consensus amongst the Commonwealth Court on the appropriate test to determine whether a local ordinance impermissibly violates the TCA demonstrates the uncertainties in the post-Loper landscape. Ultimately, the Abdulhay case confirms that TCA relief must be analyzed separately when seeking local permitting for wireless communications towers, but only if the applicant is not otherwise entitled to a variance under the MPC.
Jennifer L. Malik is a shareholder in the public sector and appellate groups of Babst Calland. Contact her at 412-394-5490 or jmalik@babstcalland.com. Anna S. Jewart is an associate in the public sector, and energy and natural resources groups of Babst Calland and focuses her practice on land use, zoning, and general municipal matters. Contact her at 412-253-8806 or ajewart@babstcalland.com.
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Reprinted with permission from the August 28, 2026 edition of The Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved.
