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12/23/97 CROWN COMMUNICATIONS v. ZONING HEARING

December 23, 1997

CROWN COMMUNICATIONS, APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF GLENFIELD AND JOHN A. STRAKA, APPELLEES; BELL ATLANTIC MOBILE SYSTEMS, INC., APPELLANT V. ZONING HEARING BOARD OF THE TOWNSHIP OF O'HARA AND TOWNSHIP OF O'HARA AND FOX CHAPEL AUTHORITY, APPELLEES



Appeal from the Order of the Commonwealth Court at No. 249 C.D. 1996 entered June 24, 1996, reversing the order of the Court of Common Pleas of Allegheny County, Civil Division, at No. SA 4159-94 entered December 21, 1995. Appeal from the Order of the Commonwealth Court at No. 2181 C.D. 1995 entered May 21, 1996 affirming in part, reversing in part and remanding the order of the Court of Common Pleas of Allegheny County, Civil Division, at No. S.A. 1739-94 entered August 18, 1995.

Mr. Chief Justice Flaherty

The opinion of the court was delivered by: Flaherty

OPINION OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: December 23, 1997

The issue in these consolidated cases is whether private business entities may be considered public utilities for zoning purposes when the applicable zoning ordinances do not define "public utility."

Crown Communications, a sole proprietorship engaged in the business of providing facilities for wireless communications, obtained a perpetual easement from the Borough of Glenfield to construct and maintain a 375 foot communications tower and equipment shed on a residential lot measuring 100 feet by 100 feet. On or about August 3, 1994 Crown applied for a building permit with the Borough of Glenfield.

Although the zoning ordinance of the Borough of Glenfield establishes four zoning districts, none of them permits communication towers by right. Article IX, Section 29(c) of the ordinance provides:

In appropriate cases, the Zoning Hearing Board on appeal, may issue a permit. . . for the . . . use of land in a suitable location by a public service corporation for public utility purposes which the Board determines reasonable [sic] necessary for the public convenience or welfare.

Article III, Section 10 of the zoning ordinance provides:

Uses Not Provided For. Whenever in any district established under this Ordinance, a use is neither specifically permitted or denied and an application is made by a property owner to the Zoning Inspector and Planning Commission for such use, the Zoning Inspector and Planning Commission shall refer the application to the Planning Commission to permit the use or deny the use. The use may be permitted if it is similar to and compatible with permitted uses in the district and in no way is in conflict with the general purpose and intent of this Ordinance.

The zoning hearing board found that Crown is a non-corporate business entity operating for-profit; that the proposed tower will be available for rent at an unregulated rate; that Crown is not regulated by any government agency; and that the property is located in a residential district. The board concluded as a matter of law that Crown is not a public service corporation and denied its application for a building permit.

Crown appealed the zoning hearing board's decision to the Court of Common Pleas of Allegheny County. The trial court reversed the board, holding that because certain lessees of space on the tower would be public utilities, the use was permissible under Section 10 of the ordinance.

On appeal, the Commonwealth Court reversed, holding that Crown is not a public service corporation under Section 29(c) of the ordinance, and is not, therefore, eligible for the ...


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