Posted by: Patricia Salkin | April 17, 2018

PA Appeals Court Reverses Denial of Permit for Wireless Tower and Finds Applicant, as Holder of Option Agreement, was a “Landowner” and had Standing to File Application for Special Exception

This post was authored by Matthew Loeser, Esq.

SBA Towers entered into an Option and Land Lease Agreement with Columbus Home Association for the lease of a 100–foot by 100–foot section of its property for the construction, support, and operation of a wireless communications tower facility. SBA Towers and Verizon filed their Application with the Unity Township Zoning Hearing Board (“ZHB”), seeking a special exception to construct a 150–foot tall monopole communications tower on the Property. SBA Towers and Verizon presented the testimony of Shreyas Patel, a radio frequency engineer for Verizon, who testified there was a substantial gap in Verizon’s coverage within the Township. In opposition, the Westmoreland County Airport Authority presented the testimony of Patrick Carney, a pilot who flew airplanes and helicopters out of the Arnold Palmer Airport. Carney stated that he believed that the proposed communications tower presented a safety concern to helicopter pilots, because the helicopter landing zone was between the runway and the location of the proposed communications tower. The ZHB denied SBA Towers’ and Verizon’s Application, and the Common Pleas reversed.

On appeal, Appellants first contended that SBA Towers lacked standing to file the Application with the ZHB, because SBA Towers was not a “landowner,” as that term was defined by Section 107 of the MPC. The record reflected that although the Option Agreement in this case did not specifically provide SBA Towers with an “exclusive easement,” the Option Agreement granted SBA Towers “the right to enter the property to conduct tests and studies … to determine the suitability of the property for SBA Towers’ intended use.” SBA Towers is a landowner and a proper applicant under Section 107 of the MPC and, thus, had standing to file the Application with the ZHB. Common Pleas, therefore, properly concluded that the ZHB abused its discretion in finding that SBA Towers lacked standing to file the Application with the ZHB.

Appellants next contended that Verizon could not intervene as a matter of course under Section 1004–A of the MPC 12 since Verizon was not an owner or tenant of the property or a party to the Option Agreement. The record in this case reflected that SBA Towers intended to construct the communications tower on the property specifically for Verizon so that Verizon could fill an existing gap in its coverage. As such, Verizon was “situated as to be adversely affected” by Common Pleas’ decision regarding whether to sustain SBA Towers’ appeal and permit SBA Towers to construct the proposed communications tower on the property.

Next, Appellants alleged that Common Pleas violated Section 1005–A of the MPC 16 by scheduling a hearing, sua sponte, when no party filed a motion to present additional evidence. Section 1005–A of the MPC permits the trial court to hold a hearing to take additional evidence upon motion. However, even though it is within the trial court’s discretion to decide whether to take any additional evidence, this discretion can only be exercised after one party files a motion. Therefore, Common Pleas committed an error of law by scheduling and holding the hearing. The court mitigated this error on appeal by disregarding the evidence presented at the hearing.

Appellants also claimed that Common Pleas substituted its judgment for that of the ZHB and erroneously determined that existing radio towers were beyond a quarter-mile radius of the property because “the undisputed evidence before the ZHB showed that the radio tower structures are located within 1,000 feet of the proposed tower site.” The court noted, however, that no witness stated on the record that existing radio towers were located within 1,000 feet of the property. As such, the court agreed with Common Pleas that the ZHB improperly determined that SBA Towers and Verizon failed to demonstrate a good faith effort to identify other structures as possible collocation sites within a quarter mile of the property.

Appellants next contended that the only evidence submitted into the record to establish that the proposed communications tower would comply with FCC standards governing human exposure to electromagnetic radiation was a hearsay letter from Rickard to the Township. This letter set forth that Verizon “performed a radio frequency (RF) compliance pre-construction evaluation” and that based on such evaluation the proposed communications tower will be in compliance with FCC guidelines. The ZHB determined that Rickard’s letter was too conclusory and did not provide sufficient detail or data. On appeal, the court noted that while the ZHB could require that the actual written evaluation be entered into evidence, it could not require any extraordinary level of detail regarding how the proposed communications tower would comply with FCC standards. Therefore, the court held that Common Pleas erred in concluding the ZHB improperly determined that SBA Towers and Verizon failed to demonstrate that the proposed communications tower and communications antennas complied with all applicable standards established by the FCC governing human exposure to electromagnetic radiation.

Lastly, Appellants argued Common Pleas’ conclusion that there was not substantial evidence in the record to support the ZHB’s finding that Monzo’s and Carney’s testimony deserved more weight than the evaluation performed and conclusion reached by the FAA regarding airport safety. The record reflected that SBA Towers and Verizon submitted into evidence a letter from the FAA indicating that the FAA had conducted an aeronautical study and determined that the proposed communications tower did “not exceed obstruction standards and would not be a hazard to air navigation.” Additionally, SBA Towers and Verizon also submitted into evidence a statement from the PBA, indicating that the PBA had no objection to the proposed communications tower “provided the FAA does not object, or determine the structure to be a hazard to air navigation.” Accordingly, the Common Pleas’ order was reversed.

SBA Towers IX, LLC v Unity Township Zoning Hearing Board of Appeals, 179 A3d 652 (PA Cmwlth 2/16/2018)


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