Kapton v. Bell Atlantic Nynex Mobile , 1997 Pa. Commw. LEXIS 393 ( 1997 )

RODGERS, Senior Judge.¹

Teresa Kapton (Appellant) appeals from an order of the Court of Common Pleas of

Washington County (trial court) that granted the preliminary objections filed by Bell Atlantic NYNEX Mobile (N.Y.NEX) and Cecil Township (Township) (collectively NYNEX) and dismissed Appellant’s complaint in equity. We affirm.

On March 19, 1996, Appellant filed a complaint in equity against NYNEX alleging that NYNEX committed an actionable harm by erecting a 270 foot cellular telephone tower for commercial purposes on property adjacent to Appellant’s. Both Appellant’s and NYNEX’s properties are located in an R-1 zoning district, which provides for residential and agricultural uses. In November of 1995, NYNEX filed an application for a building permit to erect the tower. The zoning officer granted the permit based on his conclusion that the tower was an “essential service.”²

Prior to granting the permit, the zoning officer referred NYNEX to the Township Planning Commission, which reviewed NYNEX’s request at a public hearing and granted it subject to completion of the appropriate application form. After the application form was submitted, NYNEX’s request was approved and a building permit was issued. The tower was constructed during the months of January and February, 1996. Meanwhile, no action was taken by Appellant. Then in March, 1996, Appellant filed her complaint in equity, alleging that (1) the communication facility constituted a nuisance, (2) the use of the property did not comply with the zoning ordinance and the Township had failed to enforce the provisions of the ordinance, and (3) the electromagnetic fields generated by the tower created a health and welfare risk to Appellant.

NYNEX filed preliminary objections, seeking the dismissal of the complaint. The preliminary objections were granted by the trial court, based on its conclusions that the alleged zoning violations should have been addressed to the zoning hearing board, which has exclusive jurisdiction over such matters³ and that the allegations concerning the harmful effects from radio frequency emissions were preempted by the Telecommunications Act of 1996 (Federal Act), 47 U.S.C. § 332(c)(7)(B)(iv).⁴

On appeal to this Court,⁵ Appellant raises the following issues: (1) whether the zoning hearing board had exclusive jurisdiction to hear and render a final adjudication concerning the erection of the communications tower; and (2) whether the Federal Act provides cause for dismissal of Appellant’s complaint.⁶

Although Appellant frames the first issue as jurisdictional, she first argues that the zoning ordinance does not permit the type of structure built by NYNEX in a residential zone and that the existence of the tower is a nuisance because it is an obstruction and an unsightly structure which invades the private use and enjoyment of her land. Appellant recognizes that, pursuant to Section 909.1 of the MPC, the zoning hearing board has exclusive jurisdiction to hear and render a final adjudication from a zoning officer’s grant or denial of any permit; however, she maintains that the two months in which the tower was being built did not provide her the opportunity to challenge the building permit. Therefore, Appellant contends that her only recourse was a suit in equity. This argument acknowledges that if Appellant had been properly vigilant, she could have appealed to the zoning hearing board as an aggrieved or affected party.

With respect to Appellant’s jurisdictional argument, we believe that Klein v. Shadyside Health, Education and Research Carp., 164 Pa.Cmwlth. 546, 643 A.2d 1120 (1994), is instructive. In Klein, the objectors brought an action in equity, challenging the erection, installation and enlargement of a helicopter facility. The court explained that an action in equity does not lie when the primary focus is on zoning provisions. The Klein court held that zoning procedures are an exclusive remedy when the issues involve location and size of the facility.

The Klein court recognized that an equity action may be pursued to seek injunctive relief against existing or threatened nuisances even if the land, structures or activities causing the nuisance had been authorized under the zoning procedure, i.e., a land use can have proper zoning approval under an ordinance, but because of the manner of its operation the use can still constitute a nuisance, subject to an equitable remedy. Id. However, the Klein court noted that the objectors in that case did not exhaust the administrative remedies, pursued only the question of jurisdiction in the equity action and presented no nuisance claim.

Section 617 of the MPC, 53 P.S. § 10617, allows:

[A]ny aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building [or] structure ... to prevent, in or about such premises, any act, conduct, business or use constituting such a violation.

See also Frye Construction, Inc. v. City of Monongahela, 526 Pa. 170, 584 A.2d 946 (1991). A cause of action sounding in nuisance would come within the dictates of this section of the MPC. However, here as in Klein, Appellant has failed to state a cause of action in nuisance. In her brief, Appellant does not dispute that the tower in question is a noiseless, odorless and unmanned facility requiring only periodic maintenance visits. She merely states that such periodic maintenance may be distracting to her and the presence of the tower may reduce the value of her property. Such boilerplate allegations fail to allege specifically the significant harm required by law. Kembel v. Schlegel, 329 Pa. Superior Ct. 159, 478 A.2d 11 (1984).

In her complaint, Appellant avers that construction activities, such as congestion, noise and traffic affected her, but she does not aver that any specific activity emanating from the structure after its completion reduces her enjoyment of her property. The standard to be applied is whether or not the tower would cause significant harm. Id. No significant harm is alleged in this complaint.

With regard to the issue concerning the alleged risk posed by radio frequency transmissions, Appellant concedes that the Federal Act preempts the field. See Westinghouse Electric Corp. v. Council of the Township of Hampton, 686 A.2d 905 (Pa.Cmwlth.1996) (court noted the application of 47 U.S.C. § 332(c)(7)(B)(iv) when addressing any health risks associated with cellular towers). Appellant requests that this cause of action be stricken, allowing the ease to proceed on her nuisance claim. Thus, we need not determine the preemption issue, because we will not grant relief based on an argument that Appellant has abandoned.

For the reasons stated above, we affirm the trial court’s order granting the Township’s and NYNEX’s preliminary objections and dismissing Appellant’s complaint in equity-

ORDER

NOW, September 11, 1997, the order of the Court of Common Pleas of Washington County, at No. 96-1453, dated July 25, 1996 is affirmed.

1 . This case was reassigned to the author on July 1, 1997.

2 . Section 502 of the Township’s Ordinance, entitled Planned Residential Development Regulations for the R-l District, provides in Section 502.l.B that "[accessory commercial, service, and other non-residential uses may be permitted or required where such uses are scaled primarily to serve the residents of the Planned Residential Development and the surrounding community.” (Township’s Ordinance, R.R. atp. 110a.)

3 . Section 909.1 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by the Section 87 of the Act of December 21, 1988, P.L. 1328, 53 P.S. § 10909.1, provides, in pertinent part, that:

(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

(3) Appeals from the determination of the zoning officer, including, but limited to, the granting or denial of any permit, or failure to act on the application therefor, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.

4 . Section 332(c)(7)(B)(iv) provides:

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission’s regulations concerning such emissions.

5 . Initially, Appellant filed an appeal of the trial court’s order with the Superior Court. By order dated August 27, 1996, the appeal was transferred to this Court.

6 . Our scope of review of a challenge to the sustaining of preliminary objection in the nature of a demurrer is to determine whether on the facts alleged the law states with certainty that no recovery is possible. Anelli v. Arrowhead Lakes Community Association, Inc., 689 A.2d 357 (Pa.Cmwlth.1997). We must accept ás true all well pleaded allegations and material facts averred in the complaint, as well as inferences reasonably deducible therefrom and any doubt should be resolved in favor of overruling the demurrer. Id. Preliminary objections, the result of which would be the dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Id.