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09/11/97 TERESA KAPTON v. BELL ATLANTIC NYNEX

September 11, 1997

TERESA KAPTON, APPELLANT
v.
BELL ATLANTIC NYNEX MOBILE AND CECIL TOWNSHIP



Appealed From No. 96-1453. Common Pleas Court of the County of Washington. Judge SENECA.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Samuel L. Rodgers, Senior Judge. Dissenting Opinion BY Judge Kelley.

The opinion of the court was delivered by: Rodgers

OPINION BY SENIOR JUDGE RODGERS *fn1

FILED: September 11, 1997

Teresa Kapton (Appellant) appeals from an order of the Court of Common Pleas of Washington County (trial court) that granted the preliminary objections filed by Bell Atlantic NYNEX Mobile (NYNEX) and Cecil Township (Township) (collectively NYNEX) and dismissed Appellant's complaint in equity. We affirm.

On March 19, 1996, Appellant filed a complaint in equity against NYNEX alleging that NYNEX committed an actionable harm by erecting a 270 foot cellular telephone tower for commercial purposes on property adjacent to Appellant's. Both Appellant's and NYNEX's properties are located in an R-1 zoning district, which provides for residential and agricultural uses. In November of 1995, NYNEX filed an application for a building permit to erect the tower. The zoning officer granted the permit based on his Conclusion that the tower was an "essential service." *fn2

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

NYNEX filed preliminary objections, seeking the dismissal of the complaint. The preliminary objections were granted by the trial court, based on its Conclusions that the alleged zoning violations should have been addressed to the zoning hearing board, which has exclusive jurisdiction over such matters *fn3 and that the allegations concerning the harmful effects from radio frequency emissions were preempted by the Telecommunications Act of 1996 (Federal Act), 42 U.S.C. § 332(c)(7)(B)(iv). *fn4

On appeal to this Court, *fn5 Appellant raises the following issues: (1) whether the zoning hearing board had exclusive jurisdiction to hear and render a final adjudication concerning the erection of the communications tower; and (2) whether the Federal Act provides cause for dismissal of Appellant's complaint. *fn6

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

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

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

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

Any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building [or] structure ... to prevent, in or ...


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