PA Appeals Court Rejects Claims Arising from the Denial of a Special Exception and Variance for the Construction of a Freestanding Antenna Support Structure In Lieu of a Monopole Support Structure for a Telecommunications Facility

This post was authored by Matthew Loeser, Esq,

Vineyard Oil and Gas Company (“Objector”), a limited liability company that operated within the Commonwealth of Pennsylvania, constructed, owned, and managed wireless communications facilities in Pennsylvania and elsewhere. Objector owned real property located at 10299 West Main Street, North East, Pennsylvania, which was directly adjacent to the north of the property owned by Jacob R. Jones located at 10325 West Main Street, North East, Pennsylvania. In 2016, Jones and Applicant entered into an Option andTelecommunications Facility Lease Agreement. Pursuant to the Agreement, Jones leased a portion of the property to Applicant for the purpose of erecting and operating a wireless communications facility on it. Applicant submitted the Application to the ZHB, requesting a variance from the Ordinance’s setback requirements and for the construction of a freestanding antenna support structure in lieu of a monopole support structure. The ZHB unanimously voted in favor of granting the Application, and objector appealed to the trial court. which affirmed the ZHB’s decision.

On appeal, Objector first contended that Applicant’s evidence was insufficient to satisfy the requirements under the Pennsylvania Municipalities Planning Code (“MPC”) and the Ordinance for a dimensional variance. The court found that although the ZHB concluded that the stream bisecting the Property and the floodplain conditions constituted an unnecessary hardship, it failed to consider the repair shop and the salvage yard for which the property was currently being productively used. Since Jones was already making reasonable use of the property, the court held that Applicant had not established an unnecessary hardship that entitled it to the variances it requested.

Objector next argued that Applicant’s evidence was insufficient to satisfy the Ordinance requirements for a special exception to erect a self-supporting cell tower structure in lieu of a monopole structure for cell tower antennas. Here, the testimony offered in support was deemed insufficient to support the conclusions that: “the cost of erecting a monopole would preclude the provision of adequate service to the public, or erection of a safe antenna support structure requires a type other than a monopole” and/or “the proposed antenna structure would have the least practical adverse visual impact on the environment and closely resembles a monopole.” Since the court found Applicant failed to establish the elements necessary for the ZHB to approve a self-supporting structure, it held the ZHB abused its discretion by determining that Applicant satisfied the requirements for the special exception.

Lastly, Applicant’s relevant evidence only established that a service coverage gap existed and that Applicant’s proposed service would fill that gap. The court found that evidence was insufficient to support a finding that the proposed service would fill an existing significant gap “in the ability of remote users to access the national telephone network” and/or that it was “the least intrusive on the values that the denial sought to serve.” Accordingly, the court held that the TCA did not support the grant of the dimensional variance and special exception. Thus, the trial court’s order was reversed.

Vineyard Oil and Gas Company v. North East Township Zoning Hearing Board, 2019 WL 3432069 (PA Cmwlth 7/31/2019)