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12/23/97 PITTSBURGH CELLULAR TELEPHONE COMPANY

COMMONWEALTH COURT OF PENNSYLVANIA


December 23, 1997

PITTSBURGH CELLULAR TELEPHONE COMPANY D/B/A CELLULAR ONE, AND SHIRLEY AND JOSEPH MASON
v.
BOARD OF SUPERVISORS OF MARSHALL TOWNSHIP, APPELLANT

Appealed From No. S.A. 96-134. Common Pleas Court of the County of Allegheny. Judge McLEAN.

Before: Honorable James Gardner Colins, President Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Friedman. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: December 23, 1997

The Board of Supervisors of Marshall Township (Board) appeals from an order of the Court of Common Pleas of Allegheny County (trial court), dated March 13, 1997, reversing the Board's decision to deny conditional use and site plan approval for the use of subdivided property at 120 Wheatland Road in Marshall Township (Property). We reverse.

Pittsburgh Cellular Telephone Company, d/b/a Cellular One (Cellular One) and Shirley and Joseph Mason (Masons) (collectively, Applicants) entered into a lease agreement whereby Cellular One agreed to lease a portion of Masons' Property for transmitting and receiving cellular telephone calls. Subsequently, Applicants submitted to the Board a conditional use application, a subdivision plan and a site plan (together, Application) to construct a facility consisting of an unmanned equipment shelter and a steel telephone pole (monopole) on the Masons' Property.

The Property is zoned Suburban Residential (SR) under the Marshall Township Zoning Ordinance of 1992 (Ordinance). Section 208.18G of the Ordinance permits "utility lines, electric substations and other utilities, structures or uses" as a conditional use in the SR District. In their Application, Applicants claimed that the proposed facility is a utility and, as such, is authorized as a conditional use in the SR District. After submitting their Application, Applicants submitted revised site and subdivision plans in order to comply with other Ordinance requirements.

On December 13, 1995, the Board voted to approve the revised subdivision plan but to deny the revised site plan and conditional use application. As stated in its subsequent written decision, the Board found that the proposed use is not a utility within section 208-18.G of the Ordinance; rather, it constitutes "communication facilities and services" which are not permitted in the SR District. *fn1 The Board also found that the plans as filed failed to meet the Ordinance's fence and antenna height and bufferyard requirements.

Applicants appealed the Board's decision to the trial court, which took no additional evidence and reversed the Board's decision. The Board now appeals to this court. *fn2

The decisive issue in this case is whether Cellular One's proposed use constitutes a "utility" -public or otherwise- under section 208-18.G of the Ordinance. *fn3

Whether a proposed use falls within a given category specified in an ordinance is a question of law. Bell Atl. Mobile Sys., Inc. v. Borough of Baldwin, 677 A.2d 363 (Pa. Commw. 1996), appeal denied, Pa. , 693 A.2d 590 (1997). Although the Ordinance at issue in this case does not define "utilities," we have consulted other sources for guidance as to what constitutes a utility and conclude that the Board did not abuse its discretion or commit an error of law when it concluded that Cellular One is not a utility, public or otherwise.

Cellular One is clearly not a public utility as that term is defined in the Public Utility Code. *fn4 Cellular One also is not considered to be a "public utility corporation" under the Pennsylvania Municipalities Planning Code (MPC). *fn5

Nor does Cellular One clearly qualify as a utility under existing case law. *fn6 Those cases that dealt with whether a cellular telephone provider was considered a utility for zoning purposes decided the issue based on the governing zoning ordinances' definitions. See AWACS, Inc. v. Zoning Hearing Bd. of Newtown Township, 1997 Pa. Commw. LEXIS 811, A.2d ( Pa. Commw. No. 3369 C.D. 1996, filed Nov. 17, 1997); AWACS, Inc. v. Warwick Township Zoning Hearing Bd., 656 A.2d 608 (Pa. Commw. 1995); Hawk v. Zoning Hearing Bd. of Butler Township, 152 Pa. Commw. 48, 618 A.2d 1087 (Pa. Commw. 1992), appeal denied, 535 Pa. 625, 629 A.2d 1385 (1993). Thus, where they exist, statutory definitions generally govern whether a cellular telephone provider is included or excluded within the category of a utility; however, here, the Ordinance contains no definition to guide the Board. In the absence of a statutory definition, words are construed according to their common and approved usage. See Section 1903 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903. It is unclear whether the common and approved usage of utility includes cellular telephone providers. *fn7

Because a cellular telephone provider is not explicitly included within or excluded from the meaning of "utility," neither interpretation is clearly erroneous, and the Board, therefore, did not abuse its discretion in concluding that Cellular One is not a utility. Accordingly, we reverse the order of the trial court.

ROCHELLE S. FRIEDMAN, Judge

Judge Leadbetter did not participate in the decision in this case.

ORDER

AND NOW, this 23rd day of December, 1997, the order of the Court of Common Pleas of Allegheny County, dated March 13, 1997, is hereby reversed.

ROCHELLE S. FRIEDMAN, Judge


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