Case Summary: Northeast Pennsylvania SMSA Ltd. Partnership v. Scott Tp. Zoning Hearing Board – Height Relief for Cell Tower

August 2011Newsletters In the Zone

In Northeast Pennsylvania SMSA Ltd. Partnership v. Scott Tp. Zoning Hearing Bd., 18 A.3d 1272 (Pa. Cmwlth. 2011), decided April 18, 2011, the Commonwealth Court examined an appeal by local neighbors regarding a dimensional variance that allowed NorthEast Pennsylvania SMSA Limited Partnership (Verizon) to construct a cell phone tower near the neighbors’ properties.

The Scott Township zoning ordinance requires a communications tower have setbacks equal to one-and-a-half times the tower’s height. The proposed tower by Verizon was set to be 198 feet tall in total—a tower measuring 190 feet with an eight-foot rod attached. Thus, the setback total according to the zoning ordinance requirements would have to be approximately 297 feet. Verizon applied for a dimensional variance to construct the tower to allow for setbacks, which would be less than the 297 feet required with respect to some of the neighbors’ properties.

The Board subsequently held a hearing on the variance, which was advertised by sending notice to the majority of the local neighbors through the mail. However, due to street address renumbering, many neighboring landowners never received the mailed notices and thus did not attend the hearing. At the hearing, Verizon had experts in civil engineering and electrical engineering and a design engineer discuss the planned tower’s structure and safety conditions with respect to withstanding weather conditions. After the hearing concluded, the township’s zoning board unanimously approved Verizon’s variance request.

However, once the board realized many residents who would be affected by the tower had not attended the meeting due to the faulty notice, they held a second hearing a month later where Verizon again represented various experts. The neighbors expressed their concern that because the planned tower would be only 55 feet away, in some instances, rather than the 297 feet required by the zoning ordinance, it would ultimately reduce the value of the properties, prevent the neighbors from subdividing property and impair the view. Moreover, other neighbors represented they feared for their health and safety if the planned tower was erected. The board determined that despite meeting four out of five requirements to grant a variance request, the variance would ultimately change the character of the township, impair the use and development of local properties and be detrimental to the public welfare, and thus the board denied the variance request.

Verizon then appealed the board’s revised decision to the trial court. The neighbors sought to intervene, which the trial court granted but it limited the neighbors to argue Verizon’s issue on appeal—that is, whether the variance would change the character of the township, impair the use and development of local properties and be detrimental to the public welfare. The trial court ultimately found for Verizon and reversed the board’s denial of the variance, stating there was not substantial evidence to support the board’s finding that the value of the homes would decrease or there would be a threat to the public welfare, for instance.

The neighbors then appealed to the Commonwealth Court, which found the trial court did err when it determined the board erred in denying Verizon’s variance request and thus ultimately found for the neighbors. The court relied on section 611 of the zoning ordinance, which allows the board to grant a variance upon a showing of five requirements: (1) unique characteristics of the property; (2) strict conformity to the zoning ordinance would be impossible due to such unique characteristics; (3) unnecessary hardship is demonstrated, and not created, by the applicant; (4) the variance would not have adverse affects on the neighborhood, impair the use of neighboring property or be detrimental to the public; and (5) the variance will represent the minimum variance to afford relief. The court first noted it is the party seeking the variance—here, Verizon—that has the burden of proof to show all five requirements to grant the variance are met. However, the court found Verizon did not prove the fourth requirement regarding the variance’s effects. Although Verizon presented engineer expert testimony with respect to design, construct and safety regarding weather conditions, Verizon did not demonstrate the neighbors’ property values and ability to develop the properties would not be impacted. Moreover, the neighbors demonstrated their properties were within the fall radius of the tower should the tower ever collapse. Thus, the Commonwealth Court reversed the trial court’s order and found for the neighbors.

The court additionally addressed the neighbors’ argument regarding their ability to intervene in this matter. The court noted the trial court acted improperly by prohibiting the neighbors from arguing any other issues with respect to the variance other than the one in Verizon’s appeal. Under Rule 2327 of the Pennsylvania Rules of Civil Procedure, intervention is mandatory unless there are grounds for refusal under Rule 2329, which provides that intervention can be refused if the claim or defense of the intervener is not in subordination to the propriety of the action. While the trial court found the other issues the neighbors wished to raise beyond that of Verizon’s appeal regarding the other four requirements were not subordinate to the issue Verizon raised, the Commonwealth Court disagreed. Because the issue Verizon appealed was not merely the challenge to the board’s finding that the variance would change the character of the township, impair the use and development of local properties and be detrimental to the public welfare, but also more generally, Verizon’s appeal was based on the denial of their request for a dimensional variance. Thus, the remaining issues with respect to the variance were, in fact, subordinate to these issues. Still, the court ultimately held that intervention, rather than appeal, was the proper manner to address the issues, and the court reversed the trial court’s decision.

For more information, please contact Robert W. Gundlach, Jr. at 215.918.3636 or [email protected].