Pegasus Tower Co., Ltd, and Open Range Communications, Inc. v. Upper Yoder Twp. ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pegasus Tower Co., Ltd., and Open :
Range Communications, Inc. :
: No. 192 C.D. 2017
v. :
: Argued: November 14, 2017
Upper Yoder Township Zoning :
Hearing Board and Harry Pote and :
Marjorie Pote, William and Carol :
Ann Pruchnic, George and Rani Frem :
and Samuel and Francine Glass :
:
Pegasus Tower Co., Ltd., and Open :
Range Communications, Inc. :
:
v. :
:
Upper Yoder Township Zoning :
Hearing Board :
:
Appeal of: Harry and Marjorie :
Pote, William and Carol Ann :
Pruchnic, George and Rani Frem, :
and Samuel and Francine Glass :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 23, 2018
In what may be considered to be a companion case to Pote v. Pegasus
Tower Co., Ltd., (Pa. Cmwlth., No. 1186 C.D. 2013, filed March 27, 2014)
(unreported), Harry and Marjorie Pote, William and Carol Ann Pruchnic, George and
Rani Frem, and Samuel and Francine Glass (collectively, Objectors) appeal the January
20, 2017 order of the Court of Common Pleas of Cambria County (trial court) granting
Pegasus Tower Co., Ltd. and Open Range Communications, Inc. (collectively,
Pegasus) “site-specific” relief and the authority to construct a 195 foot cellular
communications tower, with related antennas and equipment, at its originally proposed
site in an S Conservancy District. In a prior opinion and order dated October 13, 2015,
the trial court reversed the decision of the Zoning Hearing Board of Upper Yoder
Township (ZHB), concluded that the Zoning Ordinance (Ordinance) was de jure
exclusionary as to cellular towers and wireless communication facilities, and
determined that Pegasus was entitled to build its tower “somewhere” in the
municipality. We reverse.
Background
After landowners leased part of their real property to Pegasus for the right
to construct a communications tower, Pegasus filed a conditional use application on
April 8, 2011. In its application, Pegasus also contended that the Ordinance was de
jure exclusionary. On June 8, 2011, the ZHB held a hearing on Pegasus’ challenge to
the substantive validity of the Ordinance and denied the challenge. However, in the
conditional use proceedings, the Upper Yoder Township Board of Supervisors (Board)
failed to hold a hearing to determine whether Pegasus was entitled to a conditional use
under the generally applicable standards in the Ordinance regarding the proposed
tower’s impact to the health, safety, and welfare of the community.1
1
Apparently, there is some confusion amongst the parties as to which entity, the ZHB or the
Board, should have decided the merits of the conditional use application. As we noted in Pote, the
2
Pegasus appealed to the trial court, asserting that: (1) its conditional use
application was deemed approved by operation of law because the Board did not hold
a hearing within sixty days of the application, and (2) the ZHB failed to issue a written
decision that contained the necessary findings of fact and conclusions of law. On July
17, 2012, the trial court, sitting en banc, concluded that the conditional use was deemed
approved under the Municipalities Planning Code (MPC)2 and ordered Upper Yoder
Township (Township) to issue official notice that the application has been approved
(Conditional Use Case). The en banc trial court also remanded the de jure exclusionary
challenge to the ZHB to issue a written decision containing findings of fact and
conclusions of law (Exclusionary Case). After the Township issued the notice of
approval, Objectors appealed to the trial court in the Conditional Use Case.
Meanwhile, on August 22, 2012, the ZHB issued its remand decision and
again denied Pegasus’ claim that the Ordinance was invalid because it constituted de
jure exclusionary zoning. Relying on the testimony of the Township’s Zoning Officer
and Engineer, the ZHB found as fact that:
c). [A] wireless communication facility such as proposed by
[Pegasus] could be provided in zoning districts in the
Township by right, special exception, or by conditional use.
* * *
e). [Pegasus] could have applied for its use in other
districts within the Township, specifically three different
commercial zoning districts and one manufacturing district.
[Pegasus] did not apply for its use in any of those areas and/or
districts.
Board believed that it lacked jurisdiction to decide the application because it did not possess the
authority to grant a conditional use in an S Conservancy District. Pote, slip op. at 1, n.1.
2
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
3
f). [T]here actually existed other towers in the existing
zones within the Township. Specifically, there are TV
antenna towers within a residential zone.
g). [The Zoning Officer/Engineer] provided alternate sites
for the proposed use to [Pegasus].
(ZHB’s Findings of Fact No. 12 (c), (e)-(g)).
In its conclusions of law, the ZHB held:
3. The request to erect a 195 foot cell tower is clearly
commercial in nature and as such is prohibited in the
conservancy district. The ordinance is not de jure
exclusionary regarding this type of monopole cell tower.
* * *
8. The zoning ordinance may permit communication
towers and wireless communication facilities by special
exception under sections 601, 602, 603, and 701 of the
zoning ordinance, which address commercial and
manufacturing districts.
9. The 195 foot monopole cell tower may be permitted in
at least three out of the four existing commercial and
manufacturing districts if a variance were granted regarding
height. The Township Zoning Officer provided these
alternatives to [Pegasus]. [Pegasus] never applied for a
permit in any of these zones, nor ha[s] [Pegasus] applied for
a height variance.
10. The ordinance does incorporate terms such as towers
and structures. There are several similar towers of varying
use currently in existence in the Township.
* * *
14. . . . The ordinance is not exclusionary as this use may be
permitted in its commercial and manufacturing districts.
15. Moreover, [Pegasus] [is] requesting to place the 195
foot monopole cell tower, which is commercial in nature, in
4
a conservancy district. The conservancy district is intended
to preserve the scenic and ecological values of the
Township’s steep hillside, lands, waterways,
environmentally sensitive forest land and soil types through
the prohibition and restriction of commercial, industrial, and
most residential development. This district is the most
conservative district outlined in the ordinance. To place a
195 foot commercial tower in that district would not be
proper under the ordinance and in fact, since this ordinance
is not exclusionary regarding [Pegasus’] proposed use, would
be improper.
(ZHB’s Conclusions of Law Nos. 3, 8-10, 14-15.) As such, the ZHB concluded that
the Ordinance was not de jure exclusionary and cited Cellco Partnership v. North
Annville Township Zoning Hearing Board, 939 A.2d 430, 434 (Pa. Cmwlth. 2007), for
support. Pegasus appealed.
In due course, the Conditional Use Case and the Exclusionary Case were
both pending before the trial court, and the parties agreed to hold the Exclusionary Case
in abeyance until the Conditional Use Case was decided.
In their appeal to the trial court in the Conditional Use Case, Objectors
contended, among other things, that Pegasus is not entitled to a conditional use because
the proposed site of the tower is located in an S Conservancy District and the applicable
provisions of the Ordinance would only allow Pegasus to construct a communications
tower by special exception in commercial or manufacturing districts. The trial court,
however, found that the effect of the deemed approval precluded Objectors from raising
this argument. Pote, slip op. at 1-5.
A panel of this Court disagreed on further appeal and we addressed
Objectors’ contention on the merits, concluding that a conditional use was not
permitted in an S Conservancy District. In interpreting the pertinent provisions of the
Ordinance, we noted that “section 301 of the Ordinance delineates the classification of
districts as follows: C-1 District = C-1 General Business District; C-2 District = C-2
5
Planned Shopping District; C-3 District = C-3 Research-Office District; M-1 District
= M-1 Manufacturing District; and S District = S Conservancy District.” Pote, slip op.
at 17 (citing Ordinance, §301). We then looked at sections 107 (Conditional Use),
1505 (Criteria for Conditional Uses), and 901 (“S” Conservancy District) of the
Ordinance, which read, in pertinent part, as follows:
Any land use which is not specifically permitted in a
particular zoning district may be permitted in such district if
approved by the governing body of the municipality.
Provision for conditional use is to be allowed or denied by
the governing body of the municipality [and] must be made
pursuant to public notice and hearing and recommendations
by the municipal planning commission and pursuant to
expressed standards and criteria set forth in this ordinance.
In allowing a conditional use, the governing body may attach
such reasonable conditions and safeguards, in addition to
those expressed in this ordinance, as it may deem necessary
to implement the purposes of this ordinance.
Ordinance, §107 (emphasis added).
Conditional uses shall be permitted in C1, C2, C3, and M1
Zoning Districts, with the exception of specifically stated
non-permitted uses, as long as the governing body utilizes
the following criteria in permitting such conditional uses. A
conditional use may be permitted as long as it does not
negatively impact on the following:
1. Municipal infrastructure (water, sewer, streets, etc.)
2. Regional housing needs and effectiveness of the proposal
to provide affordable housing (if the proposal is residential).
3. The physical suitability of the site for the intensity of its
use.
4. The site’s soils, slopes, woodlands, wetlands, floodplains,
natural resources and natural features and any adverse
environmental impact; and
6
5. The preservation of agricultural and other land uses which
are essential to the public health and welfare.
Ordinance, §1505 (emphasis added).
The “S” Conservancy District is intended to preserve the
scenic and ecological values or the township’s steep hillside
lands, waterways, environmentally sensitive forest lands and
soil types through the prohibition or restriction of
commercial, industrial and most residential development.
The Conservancy District allows for low density “single-
family” residential development, and the continuation of
existing farming operations.
Ordinance, §901(A).
In analyzing the operative language, this Court in Pote stated: “Under
section 1505, conditional uses may be granted only in C1, C2, C3, and M1 zoning
districts and not an S Conservancy district. Therefore, with there being no dispute that
Pegasus’ proposed use is located in an S Conservancy District, we conclude that the
trial court erred in granting Pegasus a conditional use.” Pote, slip op. at 20. Having
determined that the Ordinance prohibited Pegasus from obtaining a special exception
to construct a cellular communications tower in an S Conservancy District, this Court
reversed the trial court.
Following our decision in Pote, Pegasus returned to the trial court, seeking
a ruling as to whether the ZHB erred in denying its substantive validity challenge in
the Exclusionary Case. After the parties conducted oral argument and submitted briefs,
the trial court, by opinion and order dated October 13, 2015, concluded that the
Ordinance was de jure exclusionary, differentiating our decision in Cellco as follows:
[U]nlike in Cellco, where the North Annville Township
Board determined that Verizon could build a cell phone
tower in the General Commercial District based on the
catchall provision in its Ordinance, in the case at bar the
[ZHB] includes frequent contingent language (“may be
7
permitted,” “if they are granted a variance,” “special
exception,” etc.) . . . . This language regarding contingencies
and its (the Ordinance) lack of objectivity is what Pegasus
has seized on in its argument to distinguish this case from
Cellco.
(Trial court op. at 8-9, emphasis in original; see ZHB’s Conclusions of Law Nos. 8-9
14 (stating that the Ordinance “may permit” communication towers, communications
towers “may be permitted, and “this use may be permitted.”)).
Next, the trial court analyzed the four provisions of the Ordinance,
sections 601, 602, 603, and 701, that the ZHB determined were broad enough to permit
a wireless communication facility by special exception. In relevant part, section 601,
governing C-1 General Business District, lists certain permitted uses and also:
Similar type commercial uses not specifically listed when
authorized as a special exception by the Zoning Hearing
Board after receipt and review of recommendations of the
Planning Commission. Special exceptions shall be based
upon compatibility and similarity to other uses as listed
herein and shall not be prejudicial to the health or public
safety of the community.
Ordinance, §601 (emphasis added).
Likewise, section 602, pertaining to C-2 Planned Shopping District,
allows as a use any “[s]imilar type retail, service or commercial use not specifically
listed herein when authorized by the Zoning Hearing Board after receipt and review of
recommendations from the Planning Commission.” Ordinance, §602 (emphasis
added). Further, a permitted use in a C-2 district includes “[a]ny use permitted in the
C-1 District.” Id.
With regard to C-3 Research-Office District, section 603 permits any
“[s]imilar type research-office use not specifically listed herein when authorized by
special exception of the Zoning Hearing Board after receipt and review of
recommendations from the Planning Commission. Such authorized uses may include
8
limited light manufacturing provided all activities are conducted indoors.” Ordinance,
§603 (emphasis added).
Section 701, M-1 Manufacturing District, includes within a permitted use
“[a]ny other compatible type manufacturing use,” and any “[a]ccessory use or building
customarily incidental to the above permitted uses.” Ordinance, §701 (emphasis
added). This section permits such uses:
Upon grant of a special exception by the Zoning Hearing
Board that all requirements herein are met:
A manufacturing use is one which creates a minimum
amount of nuisance outside the plant; is conducted entirely
within enclosed buildings, does not use the open area around
such buildings for storage of raw materials or manufactured
products unless screened from public view or for any other
purpose other than transporting goods between buildings;
and which is not noxious or offensive by reason of the
emission of smoke, dust, fumes, gas, odors, noises or
vibrations beyond the confines of the building.
Ordinance, §701 (emphasis added).
In interpreting these sections, the trial court commented:
As one can see, none of these sections provide criteria for the
grant of a special exception in each respective section such
that a citizen would be put on notice as to how to receive such
an exception. None of these sections establish criteria under
which an applicant could meet any objective standards so
long as they do not interfere with public welfare, safety, etc.
The [ZHB] relies on the fact that an applicant may be able to
build a wireless communication facility or cell phone tower
by “special exception” in its Conclusions of Law. See
Conclusions of Law, August 22, 2012, ¶8. However, no such
guidance is available in those sections for such an exception.
(Trial court op. at 12.)
9
Finally, the trial court found that, assuming a cellular tower could be a
permitted use by way of special exception in the commercial and manufacturing
districts, Pegasus’ proposed tower would fall outside the realm of the use because it
would most likely need a variance from height restrictions:
The [ZHB] relies on the fact that Pegasus “may be permitted
[to build its tower] in at least three out of the four existing
commercial and manufacturing districts if a variance were
granted regarding height.” See Conclusions of Law, August
22, 2012, ¶9. Section 601 has a height requirement of two
(2) stories or thirty-five (35) feet. Section 602 has no height
requirement nor does 603. Section 701 has a height
requirement of three stories or forty (40) feet. While there is
no evidentiary record to support this contention of the [ZHB]
because Pegasus never did ask for a variance, we do not
believe that this undercuts Pegasus’ argument relative to a de
jure exclusion. As discussed a variance is not a special
exception, it is, by its very nature a request to break an
ordinance. The Ordinance cannot provide for a use by
variance and then the [ZHB] argue [sic] that the use is not
excluded. In fact, the use has to be excluded in any given
zone for a variance to be available.
(Trial court op. at 13.)
Accordingly, the trial court concluded that the Ordinance constituted de
jure exclusionary zoning. After scheduling a hearing, the trial court entered an order
and opinion on January 20, 2017, decreeing that, for relief, Pegasus can construct its
cellular communications tower where it proposed in its application, in the S
Conservancy District, so long as it obtained the necessary permits and approval.
Discussion
On appeal, Objectors contend that the trial court improperly substituted
its judgment for that of the ZHB, which is owed deference in its interpretation of the
Ordinance, and overlooked section 1005 of the Ordinance. Objectors assert that the
10
trial court erroneously construed language in the ZHB’s decision as being contingent,
when a fair reading of the decision reveals that the ZHB affirmatively stated that
cellular towers are a permitted use in commercial and manufacturing districts if the
applicant meets the objective requirements for granting a conditional use.
Initially, we observe that,
Zoning ordinances that exclude uses fall into one of two
categories — de jure or de facto. In a de jure exclusion case,
the challenger alleges that an ordinance on its face totally
excludes a use. In a de facto exclusion case, the challenger
alleges that an ordinance appears to permit a use, but under
such conditions that the use cannot in fact be accomplished.
Township of Exeter v. Zoning Hearing Board of Exeter Township, 962 A.2d 653, 659
(Pa. 2009) (citations omitted). The issue in this case is whether the Ordinance is de
jure exclusionary.
Even if a zoning ordinance does not allow an entity to place its cell phone
tower exactly where it wishes, this does not mean that the ordinance is de jure
exclusionary. The test is whether the zoning ordinance “totally excludes” cell phone
towers as a use, and it is the applicant’s burden to prove so. Cellco, 939 A.2d at 438.
Simply because an ordinance does not expressly permit a use
does not mean that it prohibits that use. If localities were
required to detail in their zoning ordinances every possible
land use, they would have time to do little else. It is difficult
enough for experts in the telecommunications industry to
keep up with the changes in the industry, where technology
has changed so rapidly in a few short years. Requiring local
zoning officers to do the same — and to assure that these
changes are enshrined in local ordinances — is asking for
more than [the law] requires.
APT Pittsburgh Limited Partnership v. Lower Yoder Township, Cambria County, 111
F. Supp. 2d 664, 670 (W.D. Pa. 2000).
11
To avoid being exclusionary, an ordinance need not allow a use
absolutely, as a permitted use, but may allow for it conditionally, by way of special
exception or application for a conditional use. See Kaiserman vs. Springfield
Township, 348 A.2d 467, 469-72 (Pa. Cmwlth. 1975). As evidenced in our decision in
Pote, sections 107 and 1505 of the Ordinance vest the Board with authority to grant a
conditional use, that is, to allow a “land use” that is not specifically permitted in a
particular zoning district, after considering the impact that the proposed use may have
on the public health and welfare, including municipal infrastructure, the environment,
and the topographic nature of the area. In addition, sections 601, 602, 701 provide
further requirements that must be met to obtain a conditional use, such as
“compatibility” and/or “similarity” to other uses that are expressly permitted. Contrary
to the trial court’s conclusion, these provisions contain objective criteria for granting a
conditional use and provide sufficient guidance to applicants as to what must be
achieved, or what will be considered, when they are seeking a conditional use.
A “catchall” provision in an ordinance can allow for a use not specifically
identified in the ordinance based upon similarity or compatibility of the use in question
to the permitted uses in the district. Cellco, 939 A.2d at 438. This Court has held that
a cell phone tower is commercial in nature and is “similar to” most commercial uses;
consequently, a zoning hearing board can reasonably conclude that a cell phone tower
is permitted in commercial districts, or any other district that is commercial in nature.
See id.3 Ultimately, if a cell phone tower is permitted as a use under a “catchall”
3
In Cellco, a communications provider argued that the zoning hearing board erred in finding
a cell phone tower to be a permitted commercial use under an ordinance’s catchall provision. In
rejecting that argument, we said that it,
fails to take into account the wide swath cut by the list of permitted
commercial uses. It covers: beauty parlors, convenience stores,
12
provision, a de jure exclusionary claim necessarily fails, because the use is not totally
excluded. See id.; see also Omnipoint Communications Enterprises v. Zoning Hearing
Board of Easttown Township, 189 F. Supp. 2d 258, 265-67 (E.D. Pa. 2002), aff’d 331
F.3d 386, 396 (3d Cir. 2003); Pennsylvania Cellular Telephone Corporation v. Zoning
Hearing Board of Buck Township, 127 F. Supp. 2d 635, 642-43 (M.D. Pa. 2001); APT
Pittsburgh Limited Partnership, 111 F. Supp. 2d at 670-71 & 678-89.
Here, the catchall provisions of sections 601 and 602 of the Ordinance
permit “[s]imilar type commercial uses” in the C-1 and C-2 districts, and Cellco
mandates that the cellular tower proposed by Pegasus meets this general standard. See
Cellco, 939 A.2d at 438. Section 701, pertaining to the M-1 district, also permits a
special exception for manufacturing uses. Consistent with Cellco, Pegasus’ cellular
tower is sufficiently analogous to the manufacturing uses in the sense that the tower
processes, transmits, and/or produces signals.
Moreover, section 1005 of the Ordinance states that “[i]n any commercial,
manufacturing or multi-family residential zone, satellite television antennas may be
located within the buildable area on the lot or buildings therein.” Ordinance, §1005.
In turn, section 202 of the Ordinance defines a “satellite television antenna” as “[a]n
apparatus capable of receiving communications from a transmitter relay located in
mortuaries, churches, day care centers, bowling alleys, banks,
restaurants, upholsterers, boarding houses, laundromats and, as noted,
forestry reserves. A cell phone tower is at least as ‘similar to’ any of
these expressly permitted uses as one of them is to another. A cell
phone tower may not be similar to a beauty parlor, but, then, neither is
a bowling alley. The only common ingredient to the list of expressly
permitted commercial uses is that they involve commerce, as does,
most assuredly, a cell phone tower.
Cellco, 939 A.2d at 438.
13
geostationary orbit.” Ordinance, §202.4 Although Pegasus’ proposed tower would
involve telephonic communications and not television transmissions, the two are
remarkably comparable and substantially similar as a functional and operational matter.
See Reproduced Record (R.R.) at 72a-79a, 86a-93a; ZHB’s Conclusion of Law No. 10;
APT Pittsburgh, 111 F. Supp. 2d at 670-71 & n.5; see also Pearson v. Zoning Hearing
Board of Newlin Township, 765 A.2d 1187, 1189-90 (Pa. Cmwlth. 2001); Omnipoint
Communications v. City of Scranton, 36 F. Supp. 2d 222, 226 & n.7 (M.D. Pa. 1999).
Reading the provisions of the Ordinance as a whole, we conclude that a
cellular tower bears enough of a resemblance to the commercial and manufacturing
uses permitted in the Ordinance, and also to a satellite television antenna, that the ZHB
could reasonably conclude that Pegasus’ proposed tower is an allowable use via a
special exception and/or the catch-all provisions of the Ordinance.5 In holding
otherwise, the trial court, we believe, read the decision of the ZHB in an overly
technical manner. To us, it is readily apparent that the ZHB concluded that a cellular
tower was permitted in the commercial and manufacturing districts, on the ground that
it is similar to a satellite television antenna and is commercial by nature, with the only
caveat being that Pegasus must meet the other criteria necessary to obtain a special
exception. (See ZHB’s Conclusions of Law Nos. 8-10, 14.) A zoning hearing board,
as well as a zoning officer, is entitled to deference in interpreting a zoning ordinance,
see Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 968-69
4
In general, a cellular tower “houses the electronic communications equipment along with an
antenna to support cellular communication in a network. A cell tower is usually an elevated structure
with the antenna, transmitters and receivers located at the top.”
https://www.techopedia.com/definition/6408/cell-tower (last visited January 22, 2018).
5
Because Pegasus’ proposed use is permitted in these districts, and this is enough to save the
Ordinance from a de jure exclusionary challenge, we do not decide whether the use is permitted in
the C-3 District.
14
(Pa. Cmwlth. 2015), and the trial court failed to afford the ZHB and its Zoning Officer
that deference here.
To the extent that the trial court assessed the height requirements of the
pertinent districts as restricting the ZHB’s authority to grant a conditional use, this was
done in error. Any conditions relating to dimensional issues, such as height, are not a
basis for denying a conditional use application because compliance with a height
requirement is not an express standard or criteria for granting a conditional use under
the Ordinance. See In re Thompson, 896 A.2d 659, 670 & 681 (Pa. Cmwlth. 2006).
Consequently, the ZHB could not have denied Pegasus’ application for a use variance
on the ground that the proposed tower failed to comply with a height requirement.
Moreover, notwithstanding the fact that section 602 does not contain a height
requirement, the height requirements of sections 601 and 701 relate to the size of
“buildings” and appear to be facially inapplicable to cellular towers. Instead, the height
requirement for a satellite television antenna is contained in a more specific and
seemingly controlling provision of the Ordinance, section 1105, and is one in which
Pegasus could seek an exemption from by way of a permit. See Ordinance, §1005(b)
(“If satellite signals cannot be obtained from a satellite television antenna installed in
compliance with the aforementioned height limitation, such antenna may be installed
at a greater height, provided that a special satellite use permit is obtained prior to such
installation. Such permit shall be issued upon a showing by the applicant that
installation at a height greater than 20 feet is necessary for the reception of satellite
signals.”). Regardless of what height requirement applies, Pegasus can always obtain
a dimensional variance. See Ordinance, §1702 (providing the ZHB with the authority
to grant a variance when an applicant alleges that provisions of the Ordinance inflict
15
unnecessary hardship). The ZHB has already acknowledged as much. (ZHB’s
Conclusion of Law No. 9.)
Importantly, the negative impact, if any, that dimensional restrictions may
have on Pegasus’ ability, as a practical matter, to obtain a variance and construct a
cellular tower is relevant to a de facto challenge, and not the current de jure claim. See
Omnipoint Communications Enterprises, 189 F. Supp. 2d 258, 267-69 (E.D. Pa. 2002)
(concluding that an ordinance’s height restrictions on cellular towers pertain to a de
facto claim and rejecting that claim on the ground that the ZHB had granted
dimensional variances in the past); see also Township of Exeter v. Zoning Hearing
Board of Exeter Township, 962 A.2d 653, 662-63 (Pa. 2009); D.C. Guelich Explosives
Co. v. Zoning Hearing Board of Mifflin Township, 523 A.2d 1208, 1211 (Pa. Cmwlth.
1987). There is notable distinction between dimensional and use variances, see
Hertzberg v. Zoning Board of Adjustment of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998),
and when an applicant seeks a dimensional variance within a permitted use, a de facto
claim may be available when the dimensional restrictions verify “conditions that the
use cannot in fact be accomplished.” Township of Exeter, 962 A.2d at 659; see APT
Pittsburgh LP v. Penn Township, 196 F.3d 469, 476-78 (3d Cir. 1999); Wireless
Development Group, LLC, v. Penn Township Zoning Hearing Board and Township of
Penn, (Pa. Cmwlth., No. 1339 C.D. 2012, filed June 19, 2013) (unpublished).
Here, however, Pegasus never sought a dimensional variance. It therefore
cannot be determined whether the Ordinance, as applied to particular situations within
the districts, has the effect of prohibiting the erection of cellular towers. The fact that
the Ordinance theoretically permits cellular towers as a use is enough to defeat the
present de jure claim. Whether other restrictions in the Ordinance would make it
16
virtually impossible, or practically infeasible, to construct a cellular tower in reality,
i.e., de facto exclusion, is a different issue altogether and is not before this Court.
Therefore, because the Ordinance does not, on its face, totally ban
communication towers, and the Ordinance was reasonably interpreted by the ZHB to
allow for such use, we cannot conclude that the Ordinance is de jure exclusionary.
Accordingly, we reverse the order of the trial court.
________________________________
PATRICIA A. McCULLOUGH, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pegasus Tower Co., Ltd., and Open :
Range Communications, Inc. :
:
v. : No. 192 C.D. 2017
:
Upper Yoder Township Zoning :
Hearing Board and Harry Pote and :
Marjorie Pote, William and Carol :
Ann Pruchnic, George and Rani Frem :
and Samuel and Francine Glass :
:
Pegasus Tower Co., Ltd., and Open :
Range Communications, Inc. :
:
v. :
:
Upper Yoder Township Zoning :
Hearing Board :
:
Appeal of: Harry and Marjorie :
Pote, William and Carol Ann :
Pruchnic, George and Rani Frem, and :
Samuel and Francine Glass :
ORDER
AND NOW, this 23rd day of January, 2018, the January 20, 2017 order
of the Court of Common Pleas of Cambria County is reversed.
________________________________
PATRICIA A. McCULLOUGH, Judge