Northeast PA SMSA Limited Partnership d/b/a Verizon Wireless v. The Throop Borough ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Northeast Pennsylvania SMSA Limited :
Partnership d/b/a Verizon Wireless, :
Appellant :
:
v. :
:
The Throop Borough Zoning Hearing : No. 372 C.D. 2016
Board : Argued: December 12, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 5, 2017
Northeast Pennsylvania SMSA Limited Partnership d/b/a Verizon
Wireless (Verizon) appeals from the Lackawanna County Common Pleas Court’s
(trial court) February 10, 2016 order affirming the Throop Borough (Borough)
Zoning Hearing Board’s (ZHB) order denying Verizon’s zoning permit application
(Application). The issues before this Court are: (1) whether substantial evidence
supported the ZHB’s decision that Verizon’s proposed use would substantially affect
the community’s health, safety and welfare; and, (2) whether the ZHB erred or
abused its discretion by refusing to grant a de minimis variance.
Verizon is authorized by the Federal Communications Commission
(FCC) to operate a wireless communications system in Lackawanna County,
Pennsylvania.1 In accordance with its FCC license, Verizon is required to provide
1
See Reproduced Record at 105a-109a.
wireless signal strength sufficient for proper reception and communication for its
customers. As a result of poor wireless service in portions of the Borough caused by
weak signal strength, Verizon’s engineers determined that a wireless communications
facility with a 120-foot monopole was necessary in that area. For that reason,
Verizon leased from Scranton Craftsmen, Inc. (SCI), 4,800 square feet of land located
at 930 Dunmore Street (Property) in the Borough’s Light Industrial (I-1) Zoning
District for installation of an unmanned communications facility. Directly abutting
SCI’s Property are residential properties located on Dudley Street, in the Borough’s
residential district.
Section 507(3)(d) of the Borough’s Zoning Ordinance (Ordinance)
permits “[r]adio and television transmission or receiving towers” by special exception
in the Borough’s I-1 Zoning District. Ordinance § 507(3)(d). Section 507(5)(b) of
the Ordinance requires that “[t]he maximum land area covered by buildings shall be
25%, and the maximum total impervious cover shall be 40%.” Ordinance §
507(5)(b). Section 603(19) of the Ordinance further provides:
Any radio and television transmission or receiving tower
[located in an I-1 Zoning District] shall be set back from all
tract boundary lines a distance equal to 1.2 times its height,
and the base of such tower shall be surrounded by a chain-
link fence and locked gate a least six (6) feet high and
located at least six (6) feet from the outer edge of the base.
The fence and gate shall be maintained in good condition.
Ordinance § 603(19).
On or about March 16, 2015, Verizon and SCI filed the Application
seeking to construct on the Property
a new communications facility [(Facility)] including a[]
120’ monopole having an overall height of 125’[,] factoring
in the height of a 5’ lighting [sic] rod[,] and associated
improvements and equipment including a 12’ x 20’
platform with canopy for equipment cabinets, concrete
2
generator pad, outdoor generator, propane tank, cable ice
bridge and an 8’ chain[-]link fence.
Reproduced Record (R.R.) at 97a. Verizon and SCI sought a variance
[f]rom Section 603(19) [of the Ordinance] to allow setbacks
less than 1.2 times [] the height of the tower from adjacent
property lines; [and] from Section 507(5)(b) [of the
Ordinance] to allow the maximum land area covered by
buildings to exce[e]d 25[%] and to allow the maximum
total impervious coverage to exceed 40[%].
R.R. at 101a. In addition, Verizon and SCI sought a special exception “[i]n
accordance with Section 507(3)(d) [of the Ordinance] to allow [Verizon] to construct
a 120’ monopole with an overall height of 125’.” R.R. at 101a.
The ZHB held a hearing on April 22, 2015, at the conclusion of which it
denied the Application. On May 22, 2015, the ZHB issued its written decision
denying the special exception portion of the Application due to height and noise
concerns raised by nearby residential neighbors, and concluded that since it denied
the special exception, it need not decide the variance portion of the Application.
Verizon appealed from the ZHB’s decision to the trial court. Without taking
additional evidence, on February 10, 2016, the trial court affirmed the ZHB’s
decision denying Verizon’s Application. On March 3, 2016, Verizon appealed to this
Court.2 The trial court’s opinion was issued on March 16, 2016.
2
When no additional evidence is taken following the determination of
a [ZHB], this Court’s scope of review is limited to determining
whether the [ZHB] committed an error of law or a manifest abuse of
discretion in rendering its decision. An abuse of discretion occurs
when the findings are not supported by substantial evidence in the
record. Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
JoJo Oil Co., Inc. v. Dingman Twp. Zoning Hearing Bd., 77 A.3d 679, 685 n.6 (Pa. Cmwlth. 2013).
3
Verizon argues that substantial evidence did not support the ZHB’s
decision that Verizon’s proposed use would substantially affect the community’s
health, safety and welfare. We agree.
A special exception is a permitted use to which the
applicant is entitled if the applicant demonstrates
compliance with the specific, objective requirements
contained in a zoning ordinance and if the [ZHB]
determines that the use would not adversely affect the
community. The applicant has the burden to show that its
application complies with the specific criteria delineated in
the ordinance. By showing compliance with the specific
criteria, the applicant establishes that the proposal is
presumptively consistent with the promotion of the public
health, safety and welfare. To overcome this presumption,
an objector must prove to a high degree of probability that
the impact from the proposed use will substantially affect
the health, safety and welfare of the community to a greater
extent than would be expected normally from that type of
use. The objector does not meet its burden with
speculation.
Blancett-Maddock v. City of Pittsburgh Zoning Bd. of Adjustment, 6 A.3d 595, 600
(Pa. Cmwlth. 2010) (citations omitted; emphasis added).
In this case, Section 602 of the Ordinance prescribes, in relevant part:
Decisions of the [ZHB regarding special exceptions] shall
be made pursuant to standards and criteria expressed in this
[Ordinance] Article [6], to regulations for the respective
districts in which the uses are located, and to all other
requirements of this [O]rdinance. Further, only those uses
which are specifically enumerated as Special Exception
Uses in the appropriate table for the Zon[ing] District may
be reviewed as to establishment of said use in said Zon[ing]
District.
The [ZHB] shall grant an approval for a special
exception use only if it finds adequate evidence that the
proposed use meets both the general and specific
requirements for such use.
4
Ordinance § 602 (emphasis added). Section 602(4) of the Ordinance lists general
criteria for special exceptions:
Decisions for granting all special exception uses shall be
guided by the following general standards:
a. The proposed use shall not jeopardize the objectives of
the Comprehensive Plan.
b. Public services and facilities such as streets, sewers,
water, police and fire protection shall be adequate for the
proposed use.
c. Existing and future streets and access to the site shall be
adequate for emergency services, for avoiding undue
congestion, and for providing for the safety and
convenience of pedestrian and vehicular traffic.
d. The relationship of the proposed use to other activities
existing or planned in the vicinity shall be harmonious in
terms of the location and size of the site relative to the
proposed operation, and the nature and intensity of the
operation involved.
e. The relationship of the proposed use to other activities
existing or planned in the vicinity shall be harmonious in
terms of the character and height of buildings, walls, and
fences so that the neighboring property is not impaired.
f. The proposed use shall not be more objectionable in its
operation in terms of noise, fumes, vibrations, smoke, fly
ash, or flashing lights than would be the operations of any
permitted use in the district.
g. Any other reasonable conditions and safeguards, in
addition to those expressed in this Ordinance, may be
implemented by the [ZHB] if the [ZHB] deems it necessary
for implementing the purposes of the [MPC]. . . and this
Ordinance.
Ordinance § 602(4) (emphasis added). Section 603 of the Ordinance lists “Specific
Provisions” that special exception applicants must satisfy. Ordinance § 603. In
particular, pursuant to Section 603(19) of the Ordinance, Verizon had the burden, at a
5
minimum, to prove that the proposed Facility would satisfy the specific conditions for
telecommunications towers set forth therein (i.e., fencing and setback requirements).
At the ZHB hearing, Borough zoning officer Robert Lokuta (Lokuta)
testified that Verizon’s Application was in order and accurately represented what
Verizon needed for its proposed use on the Property. Lokuta also reported that he
conducted a walk-through at the Property and confirmed it was consistent with
Verizon’s submitted plans.
Verizon presented the testimony of Rettew Associates’ registered
landscape architect Donald E. Brinser (Brinser). Brinser described that the Property
currently consists of two parcels, and that Verizon proposes to place the 60 by 80 foot
Facility near the center of the Property, abutting an existing building that straddles the
line bisecting the two parcels. Brinser articulated that the Facility would be located
76 feet from the bisecting line, and approximately 350 feet from the Property line
abutting Skymanski Boulevard.3 Brinser explained that Verizon attempts to locate
towers along property lines or against existing structures “so it’s not sticking out in
the middle of an open area.” R.R. at 75a.
Brinser pronounced that the proposed tower will be constructed of
galvanized steel with a non-reflective finish, larger at the bottom and tapered toward
the top, with a lightning rod, and not lit in any capacity. He expressed that, in
addition to the tower, the Facility will consist of canopy-covered electric equipment
cabinets, a generator on a concrete pad, a propane fuel tank and a single parking
space to accommodate the maintenance truck that will attend to the Facility once or
twice per month. Brinser stated that the Facility will be surrounded by an 8 foot high
3
Skymanski Boulevard is an undedicated paper street used as SCI’s access driveway. See
R.R. at 36a.
6
chain-link fence with barbed wire and will have a locked gate.4 He related that the
power feed will be installed underground from Skymanski Boulevard along Verizon’s
easement to an existing utility pole. He further reported that Verizon proposes to
accommodate up to two additional carriers on the tower.5
Brinser testified that the majority of the Property is 96% covered either
by buildings (25.5%) and paving or stone material, which exceeds the limitations set
forth in Section 507(5)(b) of the Ordinance. He claimed that the 240-square foot
Facility would increase the Property’s building coverage less than 1% and, since the
Facility would be developed on an already-graveled, impervious area, “[t]here would
be a match and there would be no increase to that impervious coverage.” R.R. at 23a.
Brinser calculated that the Facility’s impact would be a de minimis .0006%.
Brinser acknowledged that Verizon’s proposed tower exceeds the
Borough’s height limitation, since Section 607(19) of the Ordinance requires the
tower to be located at least 150 feet (1.2 x 125=150 feet), rather than 76 feet, from the
adjacent interior Property line. However, Brinser articulated that, due to the existing
buildings and access, it would be impossible to place the tower in another location on
the Property and meet the 150-foot requirement.
Brinser described that Michael Chorba owns the property closest to the
Facility, approximately 150 feet directly east and 305 feet south from the Facility,
across Skymanski Boulevard. He recounted that the Borough’s residential district
line is located approximately 290 feet northwest of the Facility. He specified that
4
The Facility will be located behind 100 square feet of surrounding fence, approximately 5
feet from the abutting building. See R.R. at 21a, 35a.
5
The proposed tower would contain 4 antennas (approximately 8 feet tall, 12-14 inches
wide and 3 to 4 inches deep) that would extend approximately 4 feet above the tower’s top. See
R.R. at 46a-47a. The tower could accommodate an additional 8 antennas in lower sectors. See R.R.
at 46a.
7
since the Facility will be located near the center of SCI’s parcels, the nearest
adjoining property is located well outside a 150-foot radius surrounding the tower.
Brinser expressed that the Facility’s generator will be programmed to
run in a test mode approximately twice per month for 20 to 45 minutes, but would
otherwise be operated only in the event of a power outage. He suggested that the test
timer could be adjusted to suit the community. Brinser explained that the generator is
“vital” because residents and local police rely heavily on cell phones during
emergencies. R.R. at 25a. He does not anticipate that the generator will create
excessive or unreasonable noise. Brinser introduced the generator’s noise
specifications which reflect that, at 21 feet away, the generator’s sound level is 58
decibels. See R.R. at 103a. He added that most municipalities limit sound to 60
decibels at a property line. He concluded that since the nearest residential property
would be 290 feet from the generator, the generator’s noise would be “severely
reduced below that[;] . . . it would be less than what you’re going to hear from a
lawnmower on an adjacent property.” R.R. at 25a-26a. Brinser also pointed out that,
depending upon the residential property, there is at least one, but possibly two,
existing buildings shielding them from where the generator would be operated.
Verizon offered an April 21, 2015 Radio Frequency Design Analysis
prepared by Andrew M. Petersohn, P.E. (Petersohn) of dBm Engineering, P.C. for the
ZHB’s consideration, in which Petersohn concluded:
In my professional opinion, the proposed [F]acility is
extremely well[-]suited to provide enhanced wireless
service to portions of [the] western Borough and the
surrounding municipalities that currently suffer from
inadequate capacity and in-building coverage. The
proposed [F]acility is the only feasible alternative that will
satisfy the design objective of this search ring. The design,
location, and proposed antenna height are the least intrusive
means of providing adequate service for [Verizon]
subscribers in the targeted geography. The proposed
8
antenna height is the absolute minimum acceptable in order
to achieve a high percentage of the site’s design goals.
R.R. at 111a; see also R.R. at 111a-117a.
Verizon also presented the testimony of expert radio frequency engineer
Joseph Ruiz (Ruiz) with regard to Verizon’s proposed Facility placement. He related
that the FCC mandates Verizon to provide coverage sufficient for area customers to
access the network and for passersby to maintain coverage while traveling through
the area. He explained that, based upon Verizon’s network traffic analysis, Verizon’s
Dunmore and Dickson City sites were over capacity, so a tower needed to be added
between them and the Olyphant site to alleviate the problem. Ruiz described that an
analysis was conducted for Verizon to determine what field locations would satisfy
its coverage and capacity obligations. According to Ruiz, based upon Pennsylvania’s
terrain, the proposed Facility will have a service radius of approximately 2½ miles.
Ruiz agreed with Petersohn’s conclusion that the proposed tower is the minimum
necessary, and that there were no other viable tall structures within the vicinity that
would alleviate Verizon’s coverage and capacity issues.6
Verizon offered an April 21, 2015 Interference Analysis for the proposed
Facility prepared by Petersohn, in which Petersohn concluded “that no potential
exists for the manifestation of harmful interference as a result of the proposed
[Verizon] telecommunications [F]acility[, and] . . . that [Verizon] will be operating in
full compliance with all applicable standards as outlined in [its FCC] licensure.” R.R.
at 119a; see also R.R. at 119a-121a. Ruiz confirmed that since each FCC licensee
6
Ruiz described that, while a large, 500-foot tower on a ridge would have satisfied
Verizon’s customer needs early on, the tremendous growth in the use of cell phones and other
devices over the years has necessitated smaller, more intermittent sites to provide sufficient
capacity. He further testified that building a taller tower would exacerbate Verizon’s problems
because it has a finite number of channels, and a taller tower would cause interference with its own
network. Ruiz added that building the tower farther away would shift the coverage area to a
location where it could not effectively offload the overloaded sites.
9
operates within its own band, the proposed tower will not transmit or receive the
same frequencies as or interfere with any other communications in the Borough or the
surrounding region, particularly not radio or television reception or public safety
transmissions.
Verizon also offered an April 21, 2015 Electromagnetic Exposure
Analysis for the proposed Facility prepared by Petersohn, in which Petersohn
concluded, in pertinent part:
The maximum exposure to radio-frequency emissions from
the proposed [Verizon] [F]acility will be far below FCC
exposure limits. Using upper limit assumptions for the
[Verizon] equipment configuration, the cumulative radio-
frequency exposure levels would be at least two-hundred
(200) times less than the FCC limits at all locations of
public access.
R.R. at 123a; see also R.R. at 123a-128a. Ruiz explained that “if [Verizon] put 199
sites right here similar to the one [it is] proposing[,] [it] would still be below the
allowable limits.” R.R. at 50a. Thus, Ruiz avowed that the proposed Facility will
operate well within the FCC’s parameters governing human exposure to
electromagnetic radiation.
In addition, Verizon offered an April 17, 2015 Federal Aviation
Administration’s (FAA) Notice Criteria Tool Screening report in which Petersohn
declared that “lighting and/or marking of the [proposed F]acility will not be
required.” R.R. at 130a; see also R.R. at 130a-133a. Verizon also produced an April
20, 2015 Pennsylvania (PA) Bureau of Aviation Screening report prepared by
Petersohn, in which Petersohn concluded that “Mr. Randy Haldeman, PA Aviation
Specialist for the [PA] Bureau of Aviation, has deemed that this facility is ‘not an
obstruction’ under [the] PA aviation code and that ‘the PA Bureau of Aviation has no
objection to this proposal[.]’” R.R. at 135a; see also R.R. at 135a-137a.
10
Finally, Verizon presented the testimony of its site acquisition consultant
Paul Devlin (Devlin). Devlin explained that after he received Verizon’s
specifications for the Facility, he drove there, and identified two locations suitable
from a location and elevation standpoint – the little league baseball field and the
Property. He recalled that he examined tax and zoning maps and inquired of
landowner interest; however, due to planned field renovations, the booster club
declined Verizon’s proposal. Devlin was unable to state whether or how much the
Facility may depreciate the value of nearby residential properties.
Several neighbors (collectively, Objectors) testified before the ZHB in
opposition to the Application. Gary Bepler (Bepler) stated that his issues with the
Facility are his property’s depreciation, and that, for years he has had to “look at
enough of [SCI’s] junk . . . in front of the place . . . , without having to look at a tower
now in my front window.”7 R.R. at 78a. Bepler also related his worry that the tower
“is going to be one more attractant for light[]ning in the neighborhood.” R.R. at 80a.
Dennis Savitski (Savitski), who resides at 103 Eddy Street and also owns
property around the corner on South Valley Avenue, expressed concern that the
Facility’s presence will cause his property value to depreciate. He stated that he
“owns the [South Valley Avenue] property right across the street from” the proposed
Facility and, “was hoping to put a house up eventually for [his] children, and they’re
going to be looking right at this tower.” R.R. at 70a. Savitsky requested that Verizon
retain an appraiser to evaluate property depreciation possibilities. He further
articulated his concern that if SCI goes out of business, the Facility will remain, and
the neighbors would be “stuck with it.” R.R. at 79a.
Michael Chorba (Chorba), of 831 Dudley Street, expressed his concern
that the children playing in the residential yards will be exposed to generator noise
7
Bepler’s address is not stated in the ZHB transcript.
11
above the SCI truck traffic that already exists. He acknowledged that although the
Property is in the I-1 Zoning District, the tower “should be in a totally different area.”
R.R. at 80a.
Timothy Vanston (Vanston) testified that the Facility “would be an
eyesore,” and that he was worried about “the noise factor of those generators
running.”8 R.R. at 80a.
Carol Asman (Asman), of 2 Marion Circle, expressed concern about the
potential depreciation of her property’s value, the generator noise, “safety” and “the
light[]ning factor.” R.R. at 81a. She called for Verizon to appraise their properties,
and questioned whether the Borough would lose tax revenue if properties depreciate
in value. Paul Asman inquired what Verizon is paying SCI for the Property’s use.
Matthew Chorba, of 825 Dudley Street, testified that since he receives
satisfactory coverage as a Verizon customer and the Property already exceeds
allowable coverage limits, the Ordinance does not work a hardship for Verizon or
SCI. He expressed that even a .00001% impact increase over what already exists far
exceeds the Ordinance’s limitations and, thus, is an unnecessary increase. Matthew
Chorba acknowledged that the Property is in the I-1 Zoning District, but was
concerned because it is bounded by residential uses. He suggested that the Facility be
placed in a commercial zoning district located ¼ or ½-mile away that is not
surrounded by residences.
Based upon the evidence presented, the ZHB concluded:
In the present case significant testimony was offered by
[Verizon’s] expert witnesses. The surrounding neighbors
opposing the project also presented extensive testimony. In
considering all the evidence submitted by both [Verizon] as
well as the surrounding neighbors as well as the plans
submitted by [Verizon], the [ZHB] hereby denies
8
Vanston’s address is not stated in the ZHB transcript.
12
[Verizon’s] request for a special exception to erect the
tower in question. The [ZHB] notes as a basis for its
decision that the subject [P]roperty is surrounded by
residential neighborhoods. The height of the proposed
structure would not be in line with the character of
those adjoining neighborhoods. The [ZHB] also noted
and recognized the concerns of the neighbors regarding
noise in the use of the generator on site. Although
[Verizon] presented testimony regarding the decimal
[sic] levels, the concern of operation of a generator at least
at forty-five (45) minute intervals, twice a month would not
be harmonious to the neighborhood. The [ZHB] feels
that the proposed use would jeopardize the objective of
the plan for the zoning in the [Borough].
ZHB Dec. at 9-10 (emphasis added).
Although the ZHB did not expressly conclude that Verizon met its
burden of proving that the proposed Facility would meet Ordinance Section 603(19)’s
specific fencing and boundary line setback requirements, it is clear that was the case
since the ZHB’s conclusion was based solely upon the Facility’s effect on the
neighborhood, which is only relevant after the ZHB determined that Verizon met the
Ordinance’s objective special exception criteria.9 See Blancett-Maddock. Moreover,
the ZHB made findings that Verizon’s proposed Facility would satisfy Section
603(19) of the Ordinance’s objective special exception requirements.
Specifically, the ZHB found that the fence surrounding the proposed
Facility would be 8 feet high and would measure 50 feet x 50 feet. See ZHB Finding
of Fact (FOF) 13. In addition, because the ZHB deemed the Property a single lot for
purposes of this Application, it found that the tower met Ordinance Section 603(19)’s
9
Although under Section 1006(1)(d) of the Ordinance, the Objectors’ testimony regarding
whether granting the variances would alter the essential character of the district is also material to
the ZHB’s decision to grant or deny Verizon’s variance requests, that is not the purpose for which
the ZHB relied upon the testimony in this instance. See Ordinance § 1006(1)(d). Notably, the
ZHB’s only reference to Verizon’s variance requests was that the ZHB was “not required . . . to
consider [them]” because it denied the special exception. ZHB Dec. at 10.
13
boundary line setback requirement.10 In particular, the ZHB found that the Property
is “bounded by Cypress Street, South Valley Avenue, Dunmore Street and
Symansk[i] Boulevard,” which represents the perimeter of the conjoined parcels.
FOF 3. The ZHB also made findings regarding the Property’s maximum building-
covered land area and total impervious coverage based upon the two combined
parcels, rather than the single parcel upon which the tower would be placed. See FOF
3 (“the majority of the [P]roperty was covered by building, paving or stone
material”); see also FOF 14 (the Property’s current building coverage is 25.5%), FOF
15 (the Property’s existing impervious coverage is 96%). The ZHB further found that
10
Throughout its decision, the ZHB referred to the Property in the singular, as “the
property” or “the subject property.” ZHB Dec. at 1-10. Notably, the only exception was in the
ZHB’s description that “the location of the pole will be very close to the property line that bisects
the two subject properties of [SCI].” FOF 4. Verizon acknowledges the tower’s placement satisfies
the setback requirement “with respect to all adjacent property lines . . . .” Verizon Br. at 16.
A single-lot determination is supported by the lot merger doctrine, which permits two
adjacent lots to be merged into a single lot based upon the manner in which the common landowner
uses them. See Alpine, Inc. v. Abington Twp. Zoning Hearing Bd., 654 A.2d 186 (Pa. Cmwlth.
1995). A physical manifestation of an intent to merge adjoining properties is the common owner’s
placing of a permanent structure (here, two buildings) across the property line. Price v. Bensalem
Twp. Zoning Hearing Bd., 569 A.2d 1030, 1034 (Pa. Cmwlth. 1990) (wherein this Court held that
“the fact that [the common owner] blacktopped a contiguous section of both lots” was sufficient to
support merger).
We acknowledge that “merger of lots shall not be presumed,” and “is only triggered where a
local municipality has adopted a merger of lots provision.” Loughran v. Valley View Developers,
Inc., 145 A.3d 815, 822 (Pa. Cmwlth. 2016). “Historically, the doctrine of merger has been applied
to cases where adjacent non-conforming lot(s) were brought into common ownership.” Springfield
Twp. v. Halderman, 840 A.2d 528, 530 (Pa. Cmwlth. 2004); see also Daley v. Zoning Hearing Bd.
of Upper Moreland Twp., 770 A.2d 815 (Pa. Cmwlth. 2001); Tinicum Twp. v. Jones, 723 A.2d 1068
(Pa. Cmwlth. 1998); Alpine, Inc.; Jacquelin v. Zoning Hearing Bd. of Hatboro Borough, 558 A.2d
189 (Pa. Cmwlth. 1989). Here, Section 802(1) of the Ordinance expressly authorizes the merger of
adjacent non-conforming lots owned by the same owner. Ordinance § 801(1). SCI owns both of
the Property’s parcels, ZHB’s counsel represented at argument to this Court that the parcels were
nonconforming, and SCI’s construction of two buildings across the internal boundary line is a clear
physical manifestation of an intent to merge adjoining properties. Price.
Under the circumstances, the ZHB properly considered SCI’s two parcels a single lot for
purposes of Verizon’s Application. Accordingly, Verizon’s variance request is moot.
14
“the nearest adjoining property is outside of the [150]-foot mark and is at least [450-
]feet away from the pole itself.” FOF 9.
Because the ZHB determined that Verizon satisfied the Ordinance’s
objective special exception requirements, Verizon’s proposed Facility is a “use that
is expressly permitted by the [Ordinance], absent a showing [by the Objectors] of a
detrimental effect on the community.” Morrell v. Zoning Hearing Bd. of the Borough
of Shrewsbury, 17 A.3d 972, 975 (Pa. Cmwlth. 2011) (emphasis added); see also
Freedom Healthcare Servs., Inc. v. Zoning Hearing Bd. of the City of New Castle,
983 A.2d 1286 (Pa. Cmwlth. 2009). “The burden that is placed upon the objectors
requires more than mere speculation of possible harm.” In re Appeal of
Thompson, 896 A.2d 659, 679 (Pa. Cmwlth. 2006) (emphasis added). Rather, the law
requires that “objector[s] must prove to a high degree of probability that the impact
from the proposed use will substantially affect the health, safety and welfare of the
community to a greater extent than would be expected normally from that type
of use.” Blancett-Maddock, 6 A.3d at 600 (emphasis added). Moreover, this Court
has consistently held that protection of neighborhood aesthetics and property values
are insufficient bases upon which to deny special exceptions. Wyomissing Area
Sch. Dist. v. Zoning Hearing Bd. of Wyomissing Borough, 128 A.3d 851 (Pa.
Cmwlth. 2015).
Notwithstanding, the ZHB denied the Application based on the
following findings:
21. [Bepler] . . . is concerned about the depreciation of his
property as well as the unsightly view of having to look at
this tower being close by to the [SCI P]roperty.
22. [Savitski] . . . had concerns about the depreciation of
his property not only on South Valley Avenue but around
the corner where he resides at 103 Eddy Street. He also had
concerns that if [SCI] went out of business or closed
15
down that the tower would be present and would create a
hardship to the community in having it left there.
23. . . . Chorba’s concerns were that they were placing a
cellular tower . . . right in the middle of adjacent
residential areas. He also suggested that [Verizon] seek
alternate sights away from residential areas.
24. [Vanston] next testified and indicated that the tower
would be an eyesore and was also concerned with the noise
factor of the generators running and disturbing the
neighborhood.
25. [Asman] . . . was also concerned about the depreciation
of h[er] property and felt that Verizon did not do a good
enough job in finding locations in other areas. [Sh]e also
had a concern about safety in the community as well as the
noise of the generator.
26. [] Matthew Chorba . . . also had concerns about the
aesthetics of the tower being right in the middle of
surrounding residential districts.
ZHB Dec. at 7-8 (emphasis added). The ZHB did not make any findings or base its
conclusion on evidence that to “a high degree of probability that the impact from the
[Facility would] substantially affect the health, safety and welfare of the community
to a greater extent than would be expected normally from that type of use.” Blancett-
Maddock, 6 A.3d at 600.
The ZHB acknowledged in its decision that “significant testimony was
offered by [Verizon’s] expert witnesses,” ZHB Dec. at 9, yet denied the Application
based solely upon the Objectors’ general, speculative testimony that the tower’s
height and the generator’s noise “would not be in line with the character of th[e]
adjoining neighborhoods.”11 ZHB Dec. at 10. The ZHB clearly overlooked that “[a]
11
For example, in reaching its decision, the ZHB made findings based on Brinser’s
testimony that the generator would run in test mode twice monthly for approximately 20 to 45
minutes and, otherwise, only when necessary during power outages. See FOF 12. The ZHB also
found that the generator would be located at least 290 feet away from the nearest residence. See
16
special exception is neither special nor an exception, but a use expressly
contemplated that evidences a legislative decision that the particular type of use is
consistent with the zoning plan and presumptively consistent with the health, safety
and welfare of the community.” Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of
Lower Heidelberg Twp., 918 A.2d 181, 188 (Pa. Cmwlth. 2007); see also Broussard
v. Zoning Bd. of Adjustment of the City of Pittsburgh, 831 A.2d 764 (Pa. Cmwlth.
2003), aff’d, 907 A.2d 494 (Pa. 2006).
Section 507(1) of the Ordinance reflects that the Borough’s I-1 Zoning
District purpose “is to provide for light industrial . . . and related service activities[,
including communication transmission or receiving towers,] which . . . can be located
near residential neighborhoods . . . .” Ordinance § 507(1). Since the Borough’s
governing body has expressly permitted communications towers in the I-1 Zoning
District by special exception, see Ordinance § 507(3), the Borough has already
determined that Verizon’s proposed tower and its generator are presumptively
harmonious with the surrounding neighborhoods. Greth. Therefore, absent
substantial evidence of “a high degree of probability that the impact from the
[Facility would] substantially affect the health, safety and welfare of the community
to a greater extent than would be expected normally from that type of use[,]”
Blancett-Maddock, 6 A.3d at 600, the ZHB was required by the Ordinance to grant
the Application.
We acknowledge that “a ZHB’s interpretation of its own zoning
ordinance is entitled to great deference and weight.” Hafner v. Zoning Hearing Bd. of
Allen Twp., 974 A.2d 1204, 1210 (Pa. Cmwlth. 2009).
FOF 9. Notably, the ZHB made no findings based on Brinser’s testimony that the generator’s noise
would be less than the sound of a lawnmower at the nearest residential property, or that Verizon
would adjust the testing dates and times to suit the community.
17
However, a [ZHB] is not a legislative body, and it lacks
authority to modify or amend the terms of a zoning
ordinance. ‘[ZHBs] . . . must not impose their concept of
what the zoning ordinance should be, but rather their
function is only to enforce the zoning ordinance in
accordance with the applicable law.’ Thus, the [ZHB] is
required to apply the terms of the Zoning Ordinance as
written rather than deviating from those terms based on an
unexpressed policy.
Greth, 918 A.2d at 187 (citation omitted; emphasis added) (quoting Ludwig v. Zoning
Hearing Bd. of Earl Twp., 658 A.2d 836, 838 (Pa. Cmwlth. 1995)). The ZHB in this
case clearly “departed from its function of determining whether the proposed use fell
within the terms of the [Ordinance] and focused instead on implementing goals that it
believed fell within the spirit of the legislative enactment.” Greth, 918 A.2d at 189.
Under circumstances in which Verizon proved by substantial evidence
that the Facility meets the Ordinance’s specific special exception criteria, and the
Objectors failed to meet their burden of proving to “a high degree of probability that
the impact from the [Facility would] substantially affect the health, safety and welfare
of the community to a greater extent than would be expected normally from that type
of use[,]” Blancett-Maddock, 6 A.3d at 600, the ZHB erred by denying the
Application.12
12
The ZHB did not consider Verizon’s variance requests. The ZHB stated that, even if it
were to consider Verizon’s variances, it would deny them “based upon the significant building
coverage of [SCI].” ZHB Dec. at 10. In light of our holding, we need not decide whether Verizon
was entitled to a dimensional variance on a de minimis basis.
Notwithstanding, the ZHB’s counsel represented at argument that SCI’s coverage is non-
conforming. Section 801(4)(c) of the Ordinance allows extensions of non-conforming uses by
special exception if, inter alia, they do not violate the Ordinance’s coverage requirements, and
“[t]he extension is not more than . . . (33%) of the . . . floor or land area as it existed at the time the
structure or use first became non[-]conforming.” Ordinance § 801(4)(c). Since the Property’s
coverage was permitted as non-conforming, it does not violate the Ordinance. Moreover, based
upon the ZHB’s findings that “[Verizon] is seeking less than one percent increase [i]n the existing
[non-conforming building coverage],” FOF 14, and “there will be no increase in impervious
18
Based on the foregoing, we reverse the trial court’s order and remand to
the trial court with instructions to remand the matter to the ZHB to grant the
Application.
___________________________
ANNE E. COVEY, Judge
coverage,” FOF 15, to the extent granting the special exception in this case would constitute an
increase, it would be far less than 33%.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Northeast Pennsylvania SMSA Limited :
Partnership d/b/a Verizon Wireless, :
Appellant :
:
v. :
:
The Throop Borough Zoning Hearing : No. 372 C.D. 2016
Board :
ORDER
AND NOW, this 5th day of January, 2017, the Lackawanna County
Common Pleas Court’s (trial court) February 10, 2016 order is reversed. This matter
is remanded to the trial court to immediately remand to the Throop Borough Zoning
Hearing Board (ZHB) with the direction to grant Northeast Pennsylvania SMSA
Limited Partnership d/b/a Verizon Wireless’s and Scranton Craftsmen, Inc.’s special
exception application within 45 days of the ZHB’s receipt of the trial court’s remand
order. Should the ZHB determine within this 45-day period, and within the confines
of the Ordinance’s objective standards, that any conditions should be attached to the
special exception in order to ensure compliance with the Ordinance, the ZHB shall
specify the applicable Ordinance provision and explain why the condition is
necessary.
If the ZHB fails to act, or acts contrary to this Court’s directives, any
party may seek enforcement of this Order pursuant to Pa.R.A.P. 2591(b).
___________________________
ANNE E. COVEY, Judge