Depolo v. Board of Supervisors, 105 F. Supp. 3d 484

Plaintiff Jeffrey DePolo, an amateur radio operator, sought a permit to erect a ~180-foot self-supporting radio tower on his residential lot in Tredyffrin Township; the Zoning Hearing Board of Appeals (ZHBA) denied the 180-foot request but granted a 65-foot permit.
Township zoning ordinance limits building height in the R-1/2 residential district to 35 feet and includes antennas in height calculations; ZHBA held multiple hearings, considered extensive evidence, and found visual, safety, and historic-park impact concerns.
DePolo sued the Township Board and ZHBA claiming federal preemption under the FCC’s PRB-1 policy (47 C.F.R. § 97.15(b)) and that Pennsylvania law (53 Pa. Cons. Stat. § 302) incorporates the federal standard, seeking declaratory and injunctive relief to allow the 180-foot tower.
Defendants moved to dismiss, arguing PRB-1 does not facially or as-applied preempt the ordinance, that the municipality reasonably accommodated DePolo, and that state remedies/abstention and joinder/standing issues counseled dismissal.
Court found subject-matter jurisdiction appropriate, reviewed PRB-1’s limited preemption framework, and focused on whether the municipality reasonably accommodated the operator.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FCC PRB-1 preempts the Township height restriction	PRB-1 and Pennsylvania §302 preempt fixed height limits; DePolo needs 180 ft as minimum for communications	PRB-1 creates only limited preemption; ordinance not facially preempted and was reasonably applied	Denied preemption; ordinance not preempted because municipality reasonably accommodated applicant
Whether municipality reasonably accommodated amateur radio communications	DePolo contends the offered 65-ft permit is ineffective and insufficient	Township held multiple hearings, made findings, and offered a 65-ft compromise; DePolo refused to negotiate	Court held Township reasonably accommodated DePolo; applicant’s refusal to compromise fatal to claim
Whether federal court should abstain or defer to state process	DePolo argued federal adjudication proper because of federal concern under PRB-1	Defendants urged abstention/remand to state courts and reliance on state zoning scheme	Court retained jurisdiction but dismissed on the merits; declined to exercise supplemental jurisdiction over state claims
Whether state-law claims should proceed in federal court	DePolo sought relief under PA §302 alongside federal claim	Defendants argued lack of standing/injury and that state issues better for state courts	Court dismissed federal claim and declined supplemental jurisdiction over state-law claims

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading plausibility standard)
Ashcroft v. Iqbal, 556 U.S. 662 (pleading plausibility standard)
Wilton v. Seven Falls Co., 515 U.S. 277 (discretion under Declaratory Judgment Act)
Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988) (district court should adjudicate FCC PRB-1 preemption claim)
Williams v. City of Columbia, 906 F.2d 994 (4th Cir. 1990) (PRB-1 limited preemption analysis)
Evans v. Bd. of Cnty. Comm’rs, 994 F.2d 755 (10th Cir. 1993) (reasonable-accommodation factors and hearings evidence)
Pentel v. City of Mendota Heights, 13 F.3d 1261 (8th Cir. 1994) (reasonable-accommodation standard; municipality may deny permit after consideration)
Howard v. City of Burlingame, 937 F.2d 1376 (9th Cir. 1991) (PRB-1 promotes federal interest but does not guarantee any antenna desired)
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (preemption principles)