A Whole New Crop of Cell Tower Issues in PA

April 2012Articles In the Zone

The Pennsylvania Commonwealth Court recently upheld the grant of a dimensional variance to a farmer to build a silo tall enough to house cellular antennas. In doing so, the court rejected the Township’s argument that a “substantial” dimensional variance from the zoning code should require a heightened showing of hardship, as in a use variance, rather than the relaxed standard applicable to dimensional variances.

In Appeal of Towamencin Township, No. 1310 C.D. 2011 (April 3, 2012), the landowner operated a dairy farm on his property, on which he had existing 55-foot and 80-foot silos. Due to the moist and soft soil on the land, any corn stored on the ground, even in specially designed containers, would spoil before it could be used for feed. The landowner sought a variance to build a 120-foot silo, even though the zoning ordinance limited the silo to 65 feet. The landowner contended that if he built multiple silos, the loss of land and cost involved would be catastrophic to his dairy farm. In addition, the landowner offered evidence that modern silos were no longer being built within the size prescribed by the ordinance. In conjunction with the erection of the silo, the landowner sought to lease space on the silo for cellular antennas, which was permitted as a conditional use on “existing” buildings. None of the neighbors of the property opposed the application.

Based on the relaxed standard for the granting of a dimensional variance set forth in Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), the ZHB granted the variances and approved the application subject to the governing body’s review of the conditional use application. Further, the ZHB found that proposed buildings fit within the definition of “existing” buildings for the purposes of the placement of cellular antennas. The Township appealed, arguing that the substantial nature of the dimensional variance should require the court to apply the more stringent hardship standard applied to use variances. The trial court affirmed the ZHB, and the Township appealed to the Commonwealth Court.

In support of its argument, the Township cited Township of East Caln v. ZHB of East Caln, 915 A.2d 1249 (Pa. Commw. 2007). In Township of Caln, the court rejected a purported dimensional variance to permit the encroachment of an advertising sign into a buffer district by a few feet. The court rejected the comparison, saying that the Caln variance was actually a use variance because the landowner sought to extend his sign into the buffer district, where the use was not permitted. In this case, the court noted that the silo would not encroach on any other district or use regulation, but merely extend higher into the skyline.

The Township also relied on Schomaker v. ZHB of the Borough of Franklin Park, 994 A.2d 1196 (Pa. Commw. 2010)1, where the Commonwealth Court had rejected a variance for the height of cellular antennas as an appurtenant conditional use where the primary and conforming use of the property as a storage facility was not faced with hardship imposed by the height limitations. The court again distinguished the cases because in Schomaker, the court found that the dimensional variance was only necessary to add the cellular antennas, but that it did not benefit the existing primary use of the property as a storage facility. To the contrary, the court reasoned, the silo was necessary to the primary use of the property as a dairy farm.

Importantly, the court rejected the application of the heightened hardship standard where any dimensional variance is involved. The court emphasized:

[O]ur Supreme Court has recognized a distinction between the showing necessary to receive a dimensional variance and that required for relief in the form of a use variance; the court has never accepted the proposition advanced by the Township that there exists an intricate spectrum of dimensional relief, where each point on thiscontinuum requires a greater or lesser showing of hardship.

As a result, landowners can take comfort that regardless of the size of the dimensional variance they request, they will be subjected the relaxed hardship standards of Hertzberg and not the more stringent standard applied to use variances.