Posted by: Patricia Salkin | January 22, 2017

PA Appeals Court Finds Aesthetics Concerns Insufficient to Deny Special Exception to Monopole Tower

Verizon leased from Scranton Craftsmen, Inc. (SCI), 4,800 square feet of land in the Borough’s Light Industrial (I-1) Zoning District for installation of an unmanned, 120-foot monopole, communications facility. Section 603(19) of the Borough’s Zoning Ordinance states “Any radio and television transmission or receiving tower [located in an I-1 Zoning District] shall be set back from all tract boundary lines a distance equal to 1.2 times its height…” In this case, Northeast Pennsylvania SMSA Limited Partnership d/b/a Verizon Wireless appealed from the Lackawanna County Common Pleas Court’s (trial court) order affirming the Throop Borough Zoning Hearing Board’s (ZHB) order denying Verizon’s zoning permit application.


At the outset, the court noted that because the ZHB determined that Verizon satisfied the Ordinance’s objective special exception requirements, Verizon’s proposed Facility was a “use that is expressly permitted by the Ordinance, absent a showing by the Objectors of a detrimental effect on the community.” The law therefore required that objectors needed to prove, with a high degree of probability, that the impact from the proposed use would substantially affect the health, safety and welfare of the community to a greater extent than would be expected normally from that type of use. The ZHB acknowledged in its decision that “significant testimony was offered by Verizon’s expert witnesses,” yet denied the Application based solely upon the Objectors’ general, speculative testimony that the tower’s height and the generator’s noise “would not be in line with the character of the adjoining neighborhoods.” Accordingly, the court reversed the trial court’s order and remanded with instructions to remand the matter to the ZHB to grant the Application.


Northeast Pennsylvania SMSA Limited Partnership v The Throop Borough Zoning Hearing Board, 2017 WL 56124 (PA Cmwlth unrep. 1/5/2017)

 


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