Commonwealth Court Continues To Dial Back Dimensional Variances

July 2010Newsletters In the Zone

The Pennsylvania Commonwealth Court recently held a cellular provider could not meet the relaxed standard for the grant of a dimensional variance where the property already had another existing use in conformance with the ordinance.

In Schomaker v. ZHB of the Borough of Franklin Park, a cellular provider had submitted a request for two dimensional variances seeking permission to construct a 150-foot cell tower on an existing parcel containing an electrical utility substation, for which the cellular provider had already entered a lease. Communications towers up to 200 feet in height were permitted as a conditional use on the property, but only with a 200-foot setback from all neighboring properties. Due to the size, shape and topography of the property, it was physically impossible to meet the setback requirements with regard to all the adjacent properties. Appellant Schomaker, who had originally attempted to negotiate a lease for the tower to be placed on his own 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 zoning hearing board granted the variances and approved the application subject to the governing body's review of the conditional use application. On appeal, the trial court affirmed the grant of the variances.

On Schomaker's appeal to the Commonwealth Court, the court reversed the ZHB and the trial court and ruled the grant of the variances was an abuse of discretion. In reaching its decision, the Commonwealth Court relied upon two decisions following Hertzberg that placed some limitations on the hardship required for dimensional variances. First, the court discussed Yeager v. ZHB of the City of Allentown, 779 A.2d 595 (Pa. Commw. 2001), in which the court found Land Rover's company-imposed requirements for a larger showroom than that permissible on a property did not justify a grant of a dimensional variance because a smaller showroom suitable for different brands of automobiles could comply with the ordinance. The court ruled that "a substantial burden must apply to all dimensionally compliant uses of the property, not just the particular use the owner chooses." Id. at 598. Second, the court cited Twp. of East Caln v. ZHB of East Caln Twp., 915 A.2d 1249 (Pa. Commw. 2007), wherein the court reversed the grant of a dimensional variance for the extension and expansion of an existing cell tower. The court again ruled the hardship was not imposed upon all uses of the property but, instead, only affected the developer's preferred use.

Based on the two precedents, the court found the proposed cell tower could not meet even the relaxed standard for the grant of a dimensional variance. The court noted there was already an existing permitted use on the property and, therefore, a reasonable use of subject property could obviously be made without the grant of a variance. Therefore, the court found no hardship existed and further noted, even if there had been a hardship, the variances were not the minimal variances necessary to afford relief, as a taller tower could have been placed at a lower point on the property further from the property lines, albeit still within the setback.

The decision in Schomaker reinforces the ongoing trend in Pennsylvania's appellate courts to restrict the grant of dimensional variances, which had been very generous in the immediate aftermath of the Hertzberg decision. While Hertzberg was initially received as an open door to all but excuse the hardship requirements for dimensional variances, the decision in Schomaker further underscores the current direction back toward a more restrictive view of dimensional variances.

For more information, please contact Andrew W. Bonekemper at 610.397.7976 or [email protected].