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VANGUARD CELLULAR SYSTEM v. ZONING HEARING BOARD SMITHFIELD TOWNSHIP (12/22/89)

decided: December 22, 1989.

VANGUARD CELLULAR SYSTEM, INC., APPELLANT,
v.
ZONING HEARING BOARD OF SMITHFIELD TOWNSHIP, APPELLEE



Appeal from Common Pleas Court, Monroe County, Honorable James R. Marsh, PRES. JUDGE.

COUNSEL

Stephen A. McBride, Krawitz, Ridley & McBride, P.C., Milford, for appellant.

Daniel M. Corveleyn, Mervine, Brown, Newman & Williams, Stroudsburg, for appellee.

Crumlish, Jr., President Judge, and Colins and McGinley, JJ.

Author: Mcginley

[ 130 Pa. Commw. Page 374]

Vanguard Cellular Systems, Inc. (Vanguard) appeals from an order of the Court of Common Pleas of Monroe County (common pleas court) denying: (1) Vanguard's appeal of the Zoning Hearing Board of Smithfield Township's (Board) denial of Vanguard's application for a variance, and (2) Vanguard's motion for a remand to hear additional testimony.

Vanguard operates a cellular telephone system throughout the eastern United States. In order to complete the cellular transmission system, Vanguard determined it was necessary to construct a transmission tower in Monroe County. As a result Vanguard leased a portion of a twenty-six acre tract owned by Edwin Krawitz (Krawitz) located along Route 611 in both Stroud Township and Smithfield

[ 130 Pa. Commw. Page 375]

Township. The tax billing for the Krawitz property references Stroud Township. Consequently, in March 1988, Thomas Harraka (Harraka) a representative for Vanguard, along with Krawitz, met with the Stroud Township Planning Commission.

However, no maps were presented to the Stroud Planning Commission and no formal action was taken. On April 26, 1988, Leo Achterman, Stroud Township Engineer, informed Vanguard that the site on which the 180 foot tower and outbuilding were to be constructed was located in Smithfield Township and therefore Stroud Township did not have jurisdiction.

On April 27, 1988, Harraka attempted to obtain a permit for Vanguard in Smithfield Township. Ralph E. Snavely, Jr. (Snavely), Smithfield Zoning Officer, advised Harraka that the property was located in both townships, but that Stroud Township had control over the actual site of the tower.

Despite the confusion over the location of the site, in response to Federal Communications Commission time constraints and contractual limitations, Vanguard began construction in mid-May. On May 13, 1988, Snavely visited the construction site and issued a cease and desist order to Ronald E. Decker, an engineer from G.H. Litts, a local contractor, who had been hired by Vanguard as project engineer.

On May 14, 1988, Harraka telephoned Snavely and informed him that a twelve foot by thirty-two foot building had been delivered to the site on a flatbed truck. Snavely, then gave Harraka permission to unload the truck, but not to begin construction. On Monday, May 16, 1988, Harraka met with the Smithfield Township Board of Supervisors and was told that if construction continued, it would be at Vanguard's risk.

On May 25, 1988, Snavely informed Harraka by letter that his permit application had been denied by the Smithfield Board of Supervisors because the 180 foot transmission

[ 130 Pa. Commw. Page 376]

    tower project was not a permitted use in an R-1 low density residential (R-1) district. Snavely also advised Harraka that Vanguard could apply to the Board for a variance by returning an enclosed form by June 3, 1988. In the same May 25, 1988, letter Snavely requested that Vanguard submit a letter to the Township agreeing to assume the complete risk for construction of the project and agreeing to the removal of all improvements if the Board denied the variance and upon the denial of any subsequent appeals.

Although the Smithfield Township Planning Commission recommended approval the Board denied the variance request and ordered removal of the tower and building which Vanguard had constructed at a cost of $300,000. Vanguard appealed the Board's decision to the common pleas court seeking reversal, or in the alternative, a remand for the presentation of further testimony. The common pleas court affirmed the decision of the Board and denied Vanguard's request for a remand for presentation of further testimony on the grounds that both parties had an adequate opportunity to present evidence before the Board. Vanguard appeals.

Vanguard presents seven issues for this Court's review. Vanguard contends: that the common pleas court erred in not reversing the Board in that the Board's findings of fact and conclusions of law are not supported by substantial evidence; that the common pleas court erred in not reversing the Board which committed an error of law by failing to find that Vanguard presented substantial and adequate evidence warranting a variance as set forth in Section 912 the Pennsylvania Municipalities Planning Code (MPC);*fn1 that Vanguard did establish the prerequisites for granting a variance; that the Board improperly disregarded unrebutted ...


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