Posted by: Patricia Salkin | April 4, 2017

PA Appeals Court Reverses Denial of Special Permit Application for Cell Tower Finding Board Erroneously Relied on Speculative Statements of Neighbors

Editor’s Note: This blog post was prepared by Devin De Frisco of Touro Law Center

Allegheny Tower Associates, LLC (Applicant), appeals the decision of the Zoning Hearing Board (ZHB) denying a special permit to construct a monopole communications tower. The ZHB technically denied the special exception application by a two-to-two vote because the proposed tower did not meet the standard in the zoning ordinance addressing issues related to traffic, safety, storm water management, and impact on the neighborhood. Applicant appealed to the trial court, which affirmed the ZHB decision.

In May 2015, the Applicant filed an application with the Zoning Hearing Board seeking a special exception to construct a 140-foot high monopole communications tower that would replace an existing 120-foot high tower in a Light Industrial District. Applicant presented evidence showing that its proposed tower would comply with every requirement of the zoning ordinance. Objectors testified in opposition stating that the tower would be much larger in diameter and this would have a negative impact to the value of the neighborhood and could be dangerous if it fell. The ZHB based its denial on the concerns of the objectors finding that the proposed use did not meet one standard required by the zoning ordinance.

Applicant argues that once it satisfies the burden by presenting evidence that the tower would comply with all the requirements, the burden then shifts to the objectors to show that the tower would be detrimental to the health and safety of the community. Applicant maintains that the objectors did not satisfy their burden because they produced no sufficient, credible evidence and instead relied on speculation and opinions. The ZHB’s decision did not clearly detail what it based its denial on, but the Court stated that it appears to be based on the factual findings from the objectors’ testimony. The Court noted that while the testimony of the objectors supported the ZHB’s findings, they cannot justify the denial of the special exception application.

The Court stated that “the law is clear that objectors cannot meet their burden by merely speculating as to possible harm.” The Court reinforced this point saying that “testimony based on specific past experiences could satisfy this burden, but bald assertions and personal opinions and speculation will not.” After reviewing the ZHB’s hearing transcripts the Court found that the objectors’ concerns were based on bald assertions, opinions, and speculation. Therefore, the objectors showed no high probability that the tower would have an adverse effect not normally produced by other commercial communication towers. The Court went on further to break apart the objectors’ testimony by showing they did not even attempt to substantiate the risk of the tower falling over onto a nearby gas station. While the burden is currently placed on the objectors, the Applicant testified with past experience to rebut the objectors’ speculative concerns. He explained that in the past 30 years none of the 200+ towers he built have fallen over. He further explained that their design considers the local area’s wind speed, but that it is also built to handle much higher wind speeds than those.

After analyzing each of the objectors’ points and finding they were all speculative or based on opinion, the Court found they could not meet their burden. Although the majority of this opinion focuses on poking holes in the objectors’ weak arguments, the Court mentioned that the objectors’ concerns seem to be “directed more at the language of the zoning ordinance, which permits a communications tower by special exception in the J-L District, rather than Applicant’s specific proposed use.” Since the testimony could not defeat the Applicant’s special exception application, the ZHB erred in its denial. The Court reversed the denial of the Applicant’s special exception application.

Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118 (Pa. Commw. Ct. 2017)


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