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Schomaker v. Zoning Hearing Board of the Borough of Franklin Park

May 21, 2010


The opinion of the court was delivered by: Judge Brobson

Argued: April 20, 2010


Richard Schomaker (Objector) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that affirmed a decision of the Zoning Hearing Board (ZHB) of the Borough of Franklin Park (Borough). The ZHB granted two dimensional variances to T-Mobile for the placement of a communications tower on a tract of land in an M-1 (Mixed Use Residential/ Commercial) District (hereafter M-1 District) in the Borough. We reverse the trial court's order.

By application dated January 18, 2008, T-Mobile requested a variance from the ZHB, seeking permission to deviate from the setback requirements of section 212-29.Y.5 of the Borough's zoning ordinance (Ordinance) in order to erect a 150' monopole communication tower. T-Mobile has a lease with the owner (Pennsylvania Power/First Energy, hereafter Owner) of a 2.7-acre tract of land (the Property) located in an M-1 District in the Borough. Owner uses the Property as an electrical substation and for associated transmission equipment and poles.

The Borough's Ordinance permits communications towers in M-1 Districts as a conditional use. Section 212-29.Y.5 of the Ordinance requires that "[a]ll communications towers shall be set back from any residential property line or public street right-of-way a minimum of 200 feet." Before seeking approval for the tower as a conditional use, T-Mobile sought to obtain the dimensional variances at issue.*fn1 The ZHB conducted three hearings, and based upon the evidence the parties offered, rendered a decision granting the variances. We summarize the ZHB's pertinent factual findings below.

T-Mobile's Federal Communications Commission (FCC) License requires it to provide communications services throughout western Pennsylvania, including the Borough. In order to provide such coverage, T-Mobile selected the Property based upon the topographical characteristics of the area and in order to improve coverage for the area around the Borough and the nearby intersection of Routes 79 and 279, where coverage is presently limited.

The proposed tower would: (1) be placed on a 40' x 40' portion of the Property; (2) conform to the Institute of Electrical Electronic Engineers Revision G standards; and (3) have 24 panel antennas on top of the monopole, which would be situated on an 8' x 16' concrete pad that would also have four cabinets for transmitting and receiving equipment. An advantage of the 150' pole (as compared to one that is 200') is that it does not need to be lighted. Also, the design of the pole will afford safety to nearby properties because if it were to topple, it would collapse upon itself.

Both commercial and residential uses are present on the properties in the vicinity of the Property, and all are within the M-1 District. Objector's property, his residence, is located adjacent to and north of the Property.*fn2 The Property is the only location in the Borough that would enable T-Mobile to accomplish its purpose to provide greater coverage. T-Mobile's other attempt to enhance coverage by the placement of equipment on nearby structures was insufficient to close the coverage gap.

T-Mobile cannot erect the pole in conformity with the setback requirements as to all residential and interstate right-of-way property lines, because of the shape, size, topography, and existing conditions (including the existing substation and its equipment) of/on the Property.

As to Objector's property, the ZHB, without making a definitive determination, found that T-Mobile estimated the distance between the proposed placement of the pole and Objector's home to be 458' and that Objector estimated the distance to be only 319'. There is a significant upward slope between the proposed location of the tower and Objector's home. The tower would face the rear of Objector's home. If T-Mobile were to place the pole further from Objector's property line to increase the setback, the change in elevation would require T-Mobile to increase the height of the pole, which would increase visibility of the pole. With regard to the highway right-of-way boundary line, that property is separated from the proposed location by a significant, non-buildable, downward slope.

Based upon these factual findings, the ZHB first noted that T-Mobile will be required to satisfy the other requirements necessary for its conditional use approval and that the question of whether the placement of the pole on the Property would be lawful under Section 212-12 of the Ordinance was not at issue.*fn3 The ZHB concluded that the factors relating to the Property noted above precluded the placement of the poles in a manner that would not violate the setback requirements.

The ZHB then considered the facts and T-Mobile's request in light of our Supreme Court's decision in Hertzberg v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), and concluded that T-Mobile had satisfied its burden under Hertzberg to a demonstrate hardship that supported the ZHB's granting of the requested relief. The ZHB also held that there was insufficient evidence to support Objector's claim that the placement of the tower near his home would result in devaluation of his property, and it also held that the requested relief were the minimal variances necessary to afford relief. Ultimately, the ZHB granted variances as follows: (1) variance of approximately 137' to permit placement 62' away from the northern neighbor's (Objector's) property line; and (2) variance of approximately 145' to permit placement 54' away from the eastern boundary line (DOT's right-of-way for I-79 and 279).*fn4

Objector appealed to the trial court, raising issues we summarize as follows: (1) that the ZHB exceeded its jurisdiction in addressing T-Mobile's variance request before the governing body considered whether T-Mobile is entitled to a conditional use permit; (2) that the existing substation constitutes an existing "illegal, non-conforming use," and that the ZHB's action improperly expands the alleged non-conformity; (3) that the ZHB's decision is not supported by substantial evidence because evidence in the record indicates that the Property is suitable for permitted uses and T-Mobile's evidence also shows that the variances are for the convenience of T-Mobile and Owner rather than to alleviate a hardship peculiar to the Property; and (4) that T-Mobile failed to satisfy its burden to establish a hardship justifying the grant of the variances.

The trial court affirmed the ZHB. First, the trial court concluded that Objector's argument regarding the alleged non-conforming use is without merit, because the substation is an approved conditional use within the M-1 District. Further, the trial court reasoned that the topography of the Property supported the ZHB's conclusion that the proposed location for the tower is the only feasible place to locate the tower on the Property. Finally, the trial court opined that, once T-Mobile obtains the variance, the proposed use would be consistent with the conditional use provisions of the Ordinance and hence not pose a detriment to the public welfare.

In this appeal, Objector raises the following issues: (1) whether the trial court erred in its analysis and application of the legal standard for the grant of a dimensional variance; (2) whether the trial court erred in concluding that T-Mobile's proposed placement of a communication tower on property that has a utility substation as a principal use is permitted in the M-1 District in which the Property is located; and (3) whether the following factual findings of the ZHB are supported by substantial evidence: (a) that the topographical characteristics of the Property only permit placement of the tower in a location on the Property that will make the placement non-compliant as to the Ordinance's setback requirements; and (b) that the proposed placement of the tower is a location that faces the rear of Objector's home.

The five factors an applicant generally must demonstrate to establish entitlement to a use or dimensional variance are set forth in Section 910.2 of The Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, ...

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