Posted by: Patricia Salkin | June 11, 2020

PA Appeals Court Upholds Denial of Conditional Use Application to Construct a Communications Tower

This post was authored by Mathew Loescher, Esq.

Applicant Horvath Towers V, LLC was a communications tower infrastructure provider that owned and operated thousands of communications tower sites. In September 2018, Applicant and Pittsburgh SMSA Limited Partnership d/b/a Verizon Wireless filed the Application for a telecommunications tower facility. In this case, Horvath Towers V, LLC appealed from the Allegheny County Common Pleas Court’s order affirming the Indiana Township Board of Supervisors’ decision denying a conditional use application to construct a communications tower in the Township. 

The plat attached to Applicant’s Application unambiguously described the tower site area – the only area that Applicant would control under the Lease – as 100’ x 100’. Since Applicant’s tower’s height was to reach 190 feet, the minimum tower site area was required to be almost 2 acres – approximately 87,120 square feet. Thus, the proposed tower site’s 10,000-square-foot dimensions did not meet this condition, and the Board properly concluded that Applicant failed to satisfy the requirement. As the court held Applicant did not establish that the proposed use met the requirements of Section 511.B.1.a of the Ordinance, it did not consider Applicant’s compliance with the Ordinance’s other requirements.

Applicant next contended that the Board’s denial of its Application violated the TCA because a locality cannot deny an application if, in so doing, it would have the effect of prohibiting wireless services. The court determined that

the Board’s Application denial had nothing to do with whether service was available from another provider or whether Verizon had a gap in its coverage. Instead, the court found the Application denial was “based on a bona fide local zoning concern.” Accordingly, the court affirmed the findings the trial court and the Board. 

Horvath Towers V, LLC v Indiana Township Board of Supervisors, 2020 WL 3068737 (PA Cmwlth 6/10/2020)


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