Posted by: Patricia Salkin | July 8, 2017

PA Appeals Court Upholds Denial of Variances for Wireless Communication Tower

Shenandoah Mobile, LLC (hereafter, Shentel) filed an application with the Zoning Hearing Board of Palmyra Borough, Lebanon County, which sought a use variance to place a monopole wireless communication tower on property owned by the Borough of Palmyra. The Property was located in a C-2 Auto-Oriented Commercial Zoning District, which did not permit such towers, and was acquired by the Borough as part of a road widening project adjacent to the Property. The Pennsylvania Department of Transportation (DOT) required the Borough to acquire the Property for purposes of this project. The Borough classified the Property as an uneconomic remnant and DOT approved this classification. Shentel sought a use variance and several multiple dimensional variances. The Board denied the application, but failed to issue a written decision within the required 45 days under section 908(9) of the Pennsylvania Municipalities Planning Code (MPC). As a result, Shentel posted a notice of deemed approval on the Property and published a copy of said notice in the local newspaper, the Lebanon Daily News, for two consecutive weeks. Derry Township filed an appeal of the notice of deemed approval with the trial court. In this case, Shentel appeals from the order of the Court of Common Pleas of Lebanon County denying its application for a use variance and multiple dimensional variances.
On appeal, Shentel contended that the trial court erred in denying its variance application where the record indicated that it showed compliance with each of the requisite standards for the granting of the use and dimensional variances under section 910.2(a) of the MPC. While, the trial court recognized that the Property itself was “irregular in shape, quite narrow, steep sloping topography on part of the lot, and has a storm water channel,” the trial court also recognized that any asserted hardship was caused by the desire of the landowner, the Borough, to utilize the Property for a profitable use. Here, the Property was acquired by the Borough, albeit at the mandate of DOT, as part of a road-widening project, and had been identified as an uneconomic remnant on the deed.

Additionally, the zoning ordinance in effect at the time of Shentel’s application expressed a clear desire to locate wireless communications towers away from residential areas and to minimize any potential impact on the essential character of the neighborhood. Furthermore, there was a height limitation in the C-2 Auto-Oriented Commercial Zoning District of 35 feet and Shentel, by seeking a variance to erect a 120-foot tower, was asking for 243 percent relief from this height limitation. The court found this request was “so far beyond what is permitted in the district that the height of the tower would significantly alter the essential character of the neighborhood if it were authorized.” Accordingly, the order of the trial court was affirmed.

Township of Derry v Zoning Hearing Board of Palmyra Borough, 2017 WL 2791504 (PA Cmwlth 6/28/2017)

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