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Richards v. Borough of Coudersport Zoning Hearing Board

August 14, 2009

ALAN J. RICHARDS AND SHARON A. RICHARDS, HUSBAND AND WIFE, ROBERT J. CARROLL AND BARBARA A. CARROLL, HUSBAND AND WIFE, JEFFREY P. POTOCEK AND GAIL N. POTOCEK, HUSBAND AND WIFE, H. KENNETH JOHNSON AND DIANE E. JOHNSON, HUSBAND AND WIFE, APPELLANTS
v.
BOROUGH OF COUDERSPORT ZONING HEARING BOARD



The opinion of the court was delivered by: Judge Cohn Jubelirer

Argued: May 5, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Alan J. and Sharon A. Richards, Robert J. and Barbara A. Carroll, and H. Kenneth and Diane E. Johnson (collectively, Objectors)*fn1 appeal from an order of the Court of Common Pleas of Potter County (trial court), which affirmed the decision of the Borough of Coudersport Zoning Hearing Board (Board) granting a variance, pursuant to Section 450-58 of the Borough of Coudersport Zoning Ordinance (Ordinance),*fn2 to the Potter County Department of Emergency Services (Applicant). The variance will allow Applicant to relocate two pre-existing, nonconforming uses to a different area on the same contiguous parcel of land and expand upon those uses in order to implement necessary technological advances. On appeal, Objectors present several arguments asserting that the Board erred and/or abused its discretion in granting the requested variance. Concluding that no error of law or abuse of discretion was committed, we affirm.

I. Facts and Procedural Posture

Potter County (the County) owns a parcel of land located at 7 Mockingbird Lane, Coudersport, Pennsylvania (the Property). The Property, which comprises 300 contiguous acres, is improved with several buildings and is zoned Residential (R). Applicant currently uses one of the buildings on the Property (Building 1) for its Emergency Management Services (EMS)/Public Service Answering Point (PSAP) Headquarters, which is a pre-existing, nonconforming use. Applicant also currently maintains a communications tower,*fn3 which is a pre-existing, nonconforming use, as an accessory structure to Building 1 on the Property.

On December 18, 2007, Applicant requested a variance to relocate its EMS/PSAP Headquarters use to another existing building on the Property (Building 2) and to relocate its communications tower use to the north side of Building 2. Through the variance, Applicant also sought to expand upon its existing uses by erecting a new, 120 ft. communications tower, a shelter, and two generators adjacent to Building 2.

Building 2 is located approximately 300 ft. from Building 1, and the two buildings are separated by Maple View Lane, a driveway owned by the County. Building 2 is currently vacant; however, it was previously used by the County as a mental health facility, which was also a pre-existing, nonconforming use.

The Richards reside directly across from Building 2 on Mockingbird Lane. The Carrolls and the Johnsons live to the south of Building 2 on the same side of Mockingbird Lane as the Property. The Carroll home is separated from Building 2 by three other homes, and the Johnson home is separated from Building 2 by four other homes, including the Carroll home.

On January 28, 2008, the Board held a hearing on Applicant's variance request. At the hearing, Michael Menard, the individual who surveyed the Property and prepared the site plans for the requested variance, and John Hetrick, Applicant's Director, testified on behalf of Applicant. Mr. Johnson and Mr. Richards testified in opposition to the requested variance.

Mr. Menard testified that Applicant needs to move to a new facility in order to expand and keep up with necessary technological advances. Mr. Menard testified that Applicant desires to relocate the EMS/PSAP Headquarters to Building 2 and construct a 120 ft. communications tower on the north side of Building 2, as well as an accompanying shelter and generators. Mr. Menard explained that the proposed communications tower will be the hub for a system of six other towers being constructed throughout the County. Mr. Menard testified that Building 1 is not suitable to meet Applicant's needs because: Building 1 is located within the floodplain; Building 1 does not allow for expansion to incorporate the necessary technological upgrades; and Building 1 does not allow for appropriate security fencing to be installed. Mr. Menard explained that the presence of a stream near Building 1 presents possible flooding issues and that many of the underground utility lines at Building 1 would need to be changed to allow for the construction of the communications tower and the shelter. Mr. Menard also explained that there is insufficient available space next to Building 1 for the proposed communications tower, shelter, and generators, which need to be located next to each other. Mr. Menard testified that these issues are not present at Building 2. Mr. Menard further testified that it would be more difficult and costly to construct a new EMS/PSAP Headquarters elsewhere on the Property, instead of relocating to Building 2, because of excavation and infrastructure issues. Additionally, Mr. Menard testified that he did not believe that the proposed relocation and expansion would cause traffic or safety issues.

Mr. Hetrick testified that Applicant's desire to move its EMS/PSAP Headquarters was motivated by the Act 56*fn4 statewide initiative, which requires every county in the Commonwealth to become "Phase II compliant." (Board Hr'g Tr. at 8.) Mr. Hetrick explained that becoming "Phase II Compliant" means "the ability for the PSAP, the Public Service Answering Point, to be able to answer and process wireless phone calls." (Board Hr'g Tr. at 8.) Mr. Hetrick testified that the new EMS/PSAP Headquarters and communications tower will enable wireless phone calls to be received and processed. Mr. Hetrick also testified regarding the need to have the proposed communications tower, shelter, and generators located near the EMS/PSAP Headquarters, and the lack of any traffic and safety issues posed by the proposed relocation and expansion.

Mr. Johnson testified as to his concerns that the presence of the proposed communications tower would be detrimental to the health and safety of the neighboring landowners. Specifically, Mr. Johnson testified that he believed that the microwaves emitted from the communications tower will cause increases in blood sugar as well as problems with pacemakers. Mr. Johnson also questioned whether the microwaves emitted from the communications tower could have other adverse health effects, such as causing cancer. Mr. Johnson explained that, while he is not against the EMS/PSAP Headquarters being upgraded for better communications, he feels that it is inappropriate for the proposed communications tower to be placed in the middle of a residential community. Mr. Richards expressed concerns about the proposed communications tower falling on his property. In addition, Mr. Richards expressed concerns about the presence of the communications tower detracting from the aesthetics of his property and negatively impacting the value of his property.

At the conclusion of the hearing, the Board voted 2 to 1 to grant the requested variance. The Board subsequently issued a written decision in support of its determination. In its decision, the Board made findings of fact, which summarized the testimony and evidence presented, and then stated the following:

Conclusion of Law

The extension of a nonconforming use for the expansion of the Emergency Management Services facility in an area zoned residential first requires the grant of a variance from the . . . Board. Before granting such a variance the Board must consider all significant relevant factors and determine this increase or change in the nonconforming use will not materially add to the deleterious effect of the use upon nearby property and uses or upon the community.

Decision

The applicant's request for a variance was granted by a two to one vote (Gregg Morey in dissent) subject to the following limitations: there shall be no fencing along the front of the building and the applicant shall install landscaping so as to create noise and sight barriers between the fencing and equipment on site and the adjoining homes. Those voting in favor of the grant of variance determined that the intended project will benefit the health, safety and ...


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