Posted by: Patricia Salkin | May 24, 2011

PA Cmwlth Court Upholds Variance Denial for Cell Tower Noting that Cellular Company Failed to Meet Their Burden of Proof

In this case, the zoning hearing board had denied the variance necessary to construct a cellular phone tower on the grounds that one of the requirements for a variance was not satisfied as the construction of the planned tower would alter the “essential character” of the area, would substantially impair the use of adjacent properties and would be “detrimental to the public welfare.” The wireless company argued, and the trial court agreed, that neighbors had not proffered sufficient evidence concerning the impacts on their property, such as lessened property values. Given this lack of information, the trial court found the Hearing Board lacked sufficient information to deny the variance and reversed the denial.  

Plaintiffs, intervening neighbors appealed and the Commonwealth Court of Pennsylvania explained that the wireless company had the burden of proof regarding the issues of the variance.  Since the neighbors raised the issue of harm done to property values, it was the wireless company’s burden to show otherwise, and not the neighbors’ burden to prove harm, as the trial court had ruled.  Additionally, as the tower could have fallen, under extraordinary circumstances, on to adjacent property owners’ land, the Hearing Board’s determination that surrounding land was substantially and permanently impaired was valid given that landowners would not build in the fall-zone knowing the risk.  Since the wireless company failed to satisfy its burden and the community illustrated an impact on property, the Commonwealth Court reversed the trial court’s reversal of the Hearing Board’s variance denial. 

Northeast Pennsylvania SMSA L.P. v. Scott Township Zoning Hearing Board, 2011 WL 1486036 (PA Cmwlth. Ct.  4/18/2011) 

The opinion can be accessed at: http://www.pacourts.us/OpPosting/Cwealth/out/1762CD10_4-18-11.pdf.


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