J. Roberts and M. Roberts v. Luzerne County ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Roberts and :
Margaret Roberts, :
:
Appellants :
:
v. : No. 1319 C.D. 2016
: Argued: March 6, 2017
Luzerne County Zoning :
Hearing Board :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 18, 2017
John Roberts and Margaret Roberts (collectively, Objectors) appeal
from an order of the Court of Common Pleas of Luzerne County (trial court)
affirming a decision of the Luzerne County Zoning Hearing Board (Board), which
granted SMSA Limited Partnership d/b/a/ Verizon Wireless’s (Verizon)
application for variance and special exception to build a wireless communications
tower. Objectors argue that the Board erred or abused its discretion by granting
Verizon’s variance and special exception request because Verizon did not seek
necessary variances from the side yard setbacks or satisfy the criteria for a
variance. Upon determining that the Board’s opinion does not contain necessary
findings of fact or conclusions of law and does not address all the variance relief
requested, we vacate and remand.
I. Background
This matter involves a land use appeal brought pursuant to the
Pennsylvania Municipalities Planning Code (MPC).1 In November 2014, Verizon
filed a variance and special exception application with the Board for the
construction of a wireless communications facility at 33 Blackman Street,
Courtdale Borough, Luzerne County, Pennsylvania (Property). The Property is
owned by Courtdale Volunteer Hose Company, which leased a portion of it to
Verizon. The rectangular-shaped Property consists of two parcels with a width of
200 feet fronting Blackman Street and a depth of 150 feet. The Property is located
in the B-3 Highway Business Zoning District under the Luzerne County Zoning
Ordinance (Ordinance),2 which permits communications towers as a special
exception use. The surrounding properties are zoned R-1 One Family Residence
District.
In the application, Verizon requested: (i) a special exception in
accordance with Section 4.09 of the Ordinance to construct a new wireless
communications facility on the Property, including a 100-foot monopole with
attached 5-foot lightning rod and associated improvements including an 11.5-foot
by 16-foot prefabricated equipment shelter, outdoor generator, cable ice-bridge and
an 8-foot-high chain link fence; (ii) a variance from the setback requirement under
Section 8.04(B)(15) of the Ordinance to allow the foundation of the proposed
communications tower to be setback from the adjacent, residential property line of
21 feet (100 feet required); (iii) a variance from Article 5 of the Ordinance to allow
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
2
The Ordinance was originally adopted on December 16, 1964, and last amended on
September 25, 2012.
2
a rear setback of 10.5 feet (40 feet required); (iv) a variance from Article 5 of the
Ordinance to allow a front setback of 14.5 feet (30 feet required); (v) a variance
from Article 5 of the Ordinance to allow a side setback of 11 feet (15 feet
required); (vi) a variance from Section 6.25(B) of the Ordinance to allow a rear
setback of 1.7 feet for an accessory structure (10 feet required); and (vii) a variance
to allow the installation of an eight-foot-high chain-link fence.3 Supplemental
Reproduced Record (S.R.R.) at 4b.
In January 2015, the Board held a public hearing on Verizon’s
application. At the hearing, Verizon appeared and produced witnesses. Persons
opposing Verizon’s request also appeared and testified, including John Roberts. At
the conclusion of the hearing, the Board granted Verizon’s application for variance
and special exception, but limited the height of the facility to a 95-foot monopole
with an attached 1-foot lightning rod. Board Hearing, 1/6/15, Notes of Testimony
(N.T.) at 99-100; Reproduced Record (R.R.) at 121a-122a.
In the cursory opinion that followed, the Board made findings
identifying the parties involved, and the Property’s location, zoning district,
dimensions, ownership and lease arrangement. Board Opinion, 6/2/15, Findings of
Fact (F.F.) Nos. 1-6; R.R. at 30a-31a. As to the request itself, the Board found that
Verizon filed a zoning application seeking a special exception “for the leased
property as a cell phone tower and an accessory structure and also applied for
variances relating to dimensional setbacks, reducing the setbacks for both the cell
phone tower . . . and for the accessory structure to rear and side yard setbacks”
3
Section 804(B)(20) of the Ordinance requires a communication tower be secured by a
fence with a maximum height of eight feet. It is unclear why Verizon requested relief in this
regard.
3
pursuant to the Ordinance. F.F. No. 7; R.R. at 31a. Specifically, “[t]he rear
setback request was from 40 feet to 10.5 feet, the front setback was from 30 feet to
14.5 feet, and the side setback from 14 feet to 11 feet.” F.F. No. 8; R.R. at 31a.
“The variance for the rear setback of the accessory structure was 10 feet down to
1.7 feet and the variance for height of fence was 8 feet.” F.F. No. 9; R.R. at 31a.
The Board granted the special exception and “all the variances” with the restriction
that the cell tower’s total height not exceed 96 feet. F.F. No. 10; R.R. at 31a. The
Board then recited the criteria for a variance as its conclusions of law. Board
Opinion, Conclusions of Law Nos. 1-5; R.R. at 31a-32a.
Objectors appealed to the trial court. Verizon intervened. Without
taking additional evidence, the trial court affirmed the Board. In so doing, the trial
court found Verizon is licensed by the Federal Communications Commission
(FCC) to operate a wireless communications system within a designated frequency
spectrum in Luzerne County. Pursuant to its FCC license, Verizon must ensure
that its wireless signal strength is sufficient to provide proper reception and
communication within its licensed area. Within Courtdale Borough, the signal
strength is weak, which causes poor wireless service. As a result, residents
experience a lack of reliable coverage, and Verizon encounters a lack of network
capacity. The trial court further found that the lack of service coverage:
is due, in part, to the topography of the area. That is,
Courtdale is a bowl-shaped area. The proposed facility
where the equipment will be located affects the
propagation of radio frequency signal, thus creating
better coverage. In addition, there is no residential
development to the rear of the location where the
variance is requested.
Trial Court Opinion, 6/29/16, at 5.
4
The trial court recognized that the Ordinance permits a cellphone
tower as a special exception use provided it meets the Ordinance’s objective
requirements. Verizon’s lease of the Property did not create a new lot for purposes
of satisfying dimensional regulations. The trial court determined that Verizon was
merely seeking a de minimis variance from the Ordinance’s setback provisions and
that rigid compliance with the Ordinance was not necessary. It further determined
that the fence height of eight feet around the facility will serve public interest
providing a safety feature. Thus, the trial court concluded that the Board did not
commit an error of law or an abuse of discretion in granting Verizon’s application.
Trial Court Opinion, at 5-6.
II. Issues
On appeal to this Court,4 Objectors contend that the Board erred or
abused its discretion by granting Verizon’s variance and special exception
application. Objectors maintain that Verizon did not seek a variance to reduce side
yard setbacks, only the rear setback. Even assuming that it did, Verizon did not
meet the criteria for variance because it did not show any unique physical
characteristics or condition of the Property or that it would suffer any unnecessary
4
In a land use appeal where the trial court does not take additional evidence, our review
is limited to determining whether the Board abused its discretion or committed an error of law.
In re Thompson, 896 A.2d 659, 666 n.4 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 636 (Pa.
2007). The Board, as the finder of fact, is empowered to judge the credibility of the evidence
and the weight it should be afforded; a court may not substitute its interpretation of the evidence
for that of the governing body. In re Richboro CD Partners, L.P., 89 A.3d 742, 754-55
(Pa. Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014). The governing body abuses its discretion
when its findings of fact are not supported by substantial evidence. In re Thompson, 896 A.2d at
666 n.4. Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (citations omitted).
5
hardship as a result. Moreover, the Board’s opinion does not contain sufficient
findings of fact that would establish the basis for approving the variances. In
addition, Objectors assert that Verizon failed to meet the requisite criteria for
special exception because it did not meet the Ordinance’s requirement that a
cellphone tower’s base and foundation must be more than 100 feet from a
residential property line.
III. Discussion
To begin, Section 908(9) of the MPC, 53 P.S. §10908(9), requires a
zoning hearing board to render essential findings of fact, conclusions of law, and
sufficient rationale to support meaningful appellate review. Taliaferro v. Darby
Township Zoning Hearing Board, 873 A.2d 807, 816 (Pa. Cmwlth.), appeal
denied, 887 A.2d 1243 (Pa. 2005). Specific findings are not required if the zoning
hearing board's opinion provides an adequate explanation of its resolution of the
factual questions involved and if it sets forth the board's reasoning in such a way as
to demonstrate its decision was reasoned and not arbitrary. Id.
Where the zoning hearing board’s record includes findings of fact and
the trial court does not take additional evidence, the board’s findings “shall not be
disturbed by the court if supported by substantial evidence.” Section 1005-A of
the MPC.5 The trial court’s review is limited to a determination of whether the
board abused its discretion or committed error of law and whether its necessary
findings are supported by substantial evidence. Pyzdrowski v. Board of Adjustment
of City of Pittsburgh, 263 A.2d 426, 429 (Pa. 1970). A reviewing court “errs when
it substitutes its judgment on the merits for that of a zoning board.” Marshall v.
5
Added by the act of December 21, 1988, 53 P.S. §11005-A.
6
City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014). However, “[i]f the record does
not include findings of fact or if additional evidence is taken by the court . . . , the
court shall make its own findings of fact based on the record below as
supplemented by the additional evidence, if any.” Section 1005-A of the MPC.
A dimensional variance involves a request to adjust zoning
regulations to use the property in a manner consistent with regulations, as opposed
to a use variance, which involves a request to use property in a manner that is
wholly outside zoning regulations. Hertzberg v. Zoning Board of Adjustment of
the City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998). The standards for granting a
variance are well established and apply to use and dimensional variances. Id. at
46-47. Specifically, an applicant seeking a variance must demonstrate:
That there are unique physical circumstances or
conditions, including irregularity, narrowness or
shallowness of lot size or shape or exceptional
topographical or other physical conditions peculiar to the
particular property and that the unnecessary hardship is
due to such conditions and not the circumstances or
conditions generally created by the provisions of the
Zoning Ordinance in the neighborhood or district in
which the property is located;
That because of such physical circumstances or
conditions, there is no possibility that the property can be
developed in strict conformity with the provisions of the
Zoning Ordinance and that the authorization of a
variance is therefore necessary to enable the reasonable
use of the property;
That such unnecessary hardship has not been created by
the appellant;
That the variance, if authorized, will not alter the
essential character of the neighborhood or district in
which the property is located, nor substantially or
7
permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public
welfare; and
That the variance, if authorized, will represent the
minimum variance that will afford relief and will
represent the least modification possible of the regulation
in issue. In granting any variance, the board may attach
such reasonable conditions and safeguards as it may
deem necessary to implement the purposes of this act and
the Zoning Ordinance.
Section 8.41 of the Ordinance; accord Section 910.2 of the MPC;6 Hertzberg,
721 A.2d at 46-47.
“The overriding standard for a variance is unnecessary hardship.”
Doris Terry Revocable Living Trust v. Zoning Board of Adjustment of City of
Pittsburgh, 873 A.2d 57, 63 (Pa. Cmwlth. 2005). For an applicant to show
unnecessary hardship in the context of a use variance, he must prove that either:
“(1) the physical features of the property are such that it cannot be used for a
permitted purpose; or (2) the property can be conformed for a permitted use only at
a prohibitive expense; or (3) the property is valueless for any purpose permitted by
the zoning ordinance.” Taliaferro, 873 A.2d at 812. “The applicant must show the
hardship is unique or peculiar to the property as distinguished from a hardship
arising from the impact of zoning regulations on the entire district.” Id.
However, in Hertzberg, the Pennsylvania Supreme Court set forth a
more relaxed standard for establishing unnecessary hardship for a dimensional
variance. Hertzberg, 721 A.2d at 49. The Supreme Court explained:
When seeking a dimensional variance within a permitted
use, the owner is asking only for a reasonable adjustment
6
Added by the act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10910.2.
8
of the zoning regulations in order to utilize the property
in a manner consistent with the applicable regulations.
Thus, the grant of a dimensional variance is of lesser
moment than the grant of a use variance, since the latter
involves a proposal to use the property in a manner that is
wholly outside the zoning regulation.
Id. at 47. The Court held “the quantum of proof required to establish unnecessary
hardship is indeed lesser when a dimensional variance, as opposed to a use
variance, is sought.” Id. at 48. Under Hertzberg, the courts may consider multiple
factors in determining whether the applicant established unnecessary hardship for a
dimensional variance. Id. at 50. These factors include: “the economic detriment to
the applicant if the variance was denied, the financial hardship created by any work
necessary to bring the building into strict compliance with the zoning requirements
and the characteristics of the surrounding neighborhood.” Id.
Although Hertzberg eased the requirements, it did not remove them.
Tri–County Landfill, Inc. v. Pine Twp. Zoning Hearing Board, 83 A.3d 488, 520
(Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014) (citing Doris Terry, 873
A.2d at 62). An applicant must still present evidence as to each of the conditions
listed in the zoning ordinance, including unnecessary hardship. Id. Where no
hardship is shown, or where the asserted hardship amounts to a landowner’s desire
to increase profitability or maximize development potential, the unnecessary
hardship criterion required to obtain a variance is not satisfied even under the
relaxed standard set forth in Hertzberg. Id. However, “in establishing hardship, an
applicant for a variance is not required to show that the property at issue is
valueless without the variance or that the property cannot be used for any permitted
purpose.” Marshall, 97 A.3d at 330 (emphasis in original).
9
Notably, a public need for a cellphone tower is not a unique
characteristic of the property itself. See Township of East Caln v. Zoning Hearing
Board of East Caln Township, 915 A.2d 1249, 1254 (Pa. Cmwlth. 2007). East
Caln involved an application by a wireless communication provider to expand an
existing conditional use permit in order to construct a new cellphone tower that
exceeded the height requirements of the applicable ordinance. Id. at 1250. The
wireless communication provider introduced evidence before the zoning hearing
board documenting the coverage gap and the attendant interference with
emergency services that would be eliminated by the variance. The provider also
presented evidence that alternative sites were not conducive locations for its
proposed tower. The board granted the variance, reasoning that the variance was
in the public interest. Id. at 1251. On appeal, this Court reversed. We explained
that, in order to carry the burden necessary for variance relief, the property owner
must “establish a hardship that attends the property, as distinguished from its
owner.” Id. at 1254 (emphasis in original). A determination that the tower was in
the public interest and alternate sites were not suitable locations did not amount to
a hardship attendant to the subject property. Id.
Later, we clarified that East Caln “does not counsel that a variance
cannot be granted where a wireless communication provider is involved and the
public is benefited by improved coverage.” In re Towamencin Township, 42 A.3d
366, 372 (Pa. Cmwlth. 2012). Rather, East Caln “clearly advises that a variance
cannot be granted when found to be in the public interest alone.” Id. (emphasis
added).
Upon review, the Board did not provide sufficient findings or an
adequate explanation to support its conclusion that Verizon satisfied the criteria for
10
variance to allow for adequate appellate review. Although the Board made
findings, those findings merely identified the parties involved, the Property’s
location, zoning district, dimensions, ownership and lease arrangement, and the
aspects of the application. The Board did not make any findings regarding whether
the evidence satisfied the criteria for granting a variance, including any
unnecessary hardship attendant to the Property. See Marshall, 97 A.3d at 331 (“It
is the function of the zoning board to determine whether the evidence satisfies the
criteria for granting a variance.”). The Board concluded by merely reciting the
boilerplate criteria for a variance, without any specifics regarding this particular
Property.
Although the trial court attempted to provide some justification for the
Board’s decision by adding facts not found by the Board, the trial court did not
accept additional evidence or conduct de novo review of the evidence. Rather, the
trial court reviewed the Board’s findings under its appellate standard of review.
See Trial Court Opinion, at 3, 5-6. Therefore, our review is limited to determining
whether the Board abused its discretion or committed an error of law. In re
Thompson, 896 A.2d 659, 666 n.4 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d
636 (Pa. 2007).
Even if we were to review the trial court’s opinion, as opposed to the
Board’s, the trial court’s opinion does not adequately address the circumstances
attendant to the Property warranting a variance. Rather, the trial court focused on
Verizon’s FCC responsibilities, the area’s topography, and the need for improved
wireless communications service in Courtdale Borough. Such circumstances do
not attend to the Property. See Towamencin; East Caln.
11
Moreover, the Board did not address the variance from Section
8.04(B)(15) for the side yards in its opinion. Section 8.04(B)(15) of the Ordinance
provides:
The foundation and base of any Communications Tower
located adjacent to any residentially occupied property,
or adjacent to any residential zone, shall be set back from
a property line (not lease line), at least one hundred (100)
feet and shall be set back from any other property line
(not lease line) at least fifty (50) feet.
The Property is only 200 feet wide; 150 feet deep. Presumably, the foundation and
base of the proposed tower would encroach within the 100-foot setbacks for the
two residentially-zoned side properties, one of which is owned and occupied by
Objectors. Although the Board granted a rear yard setback from 100 feet required
to 21 feet at the hearing, N.T. at 99-100; R.R. at 1211a-122a, the Board did not
address or specifically grant a variance from Section 8.04(B)(15) for the side
yards. See R.R. at 121a.
Insofar as Objectors maintain that Verizon never requested a variance
from Section 8.04(B)(15) from the side yards, we disagree. Initially, Verizon
requested a “[v]ariance to allow foundation of communications tower to be setback
from adjacent, residential property line (100’ required; 21’ proposed).” S.R.R. at
4b. The 21-foot proposal pertains only to the rear setback. R.R. at 119a. Verizon
asserts it referenced 21 feet because this dimension was the maximum relief
requested from Section 8.04(b)(15). Intervenor’s Brief at 46. Notwithstanding, in
the maps submitted as part of Verizon’s application, Verizon specifically requested
a variance “to permit a tower to be setback less then [sic] the required 100 feet (98
feet is proposed), per section 804.B.15 of the [Ordinance].” See Supplemental
Certified Record, Zoning Hearing Board Exhibits, CMC Engineering Plans,
12
Zoning Note No. 3. This request clearly pertains to setback relating to both
adjacent side properties, including Objectors’ property. Moreover, the 100-foot
setback for all sides was discussed at the hearing. See R.R. at 103a-104a, 116a,
118a.
IV. Conclusion
In sum, because the Board’s opinion does not contain necessary
findings and conclusions or specifically address all aspects of Verizon’s variance
request, we are compelled to vacate the trial court’s opinion and remand the matter
to rectify these omissions.7
MICHAEL H. WOJCIK, Judge
7
In light of this disposition, we need not address Objectors’ remaining argument that the
Board erred or abused its discretion by granting a special exception. Section 4.09 of the
Ordinance permits communication towers by special exception provided the proposed use
satisfies the objective requirements. Resolution of this issue will depend on whether Verizon is
entitled to the variances requested.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Roberts and :
Margaret Roberts, :
:
Appellants :
:
v. : No. 1319 C.D. 2016
:
Luzerne County Zoning :
Hearing Board :
ORDER
AND NOW, this 18th day of April, 2017, the order of the Court of
Common Pleas of Luzerne County (trial court), dated June 29, 2016, is VACATED
and this matter is REMANDED to the trial court with instructions to remand to the
Luzerne County Zoning Hearing Board to make findings of fact and conclusions of
law consistent with the foregoing opinion.
Jurisdiction is relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge