The opinion of the court was delivered by: Judge Leavitt
Submitted: January 22, 2010
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
David and Diane Blancett-Maddock appeal an order of the Court of Common Pleas of Allegheny County (trial court) affirming the decision of the City of Pittsburgh Zoning Board of Adjustment (Zoning Board) to grant VoiceStream Pittsburgh, L.P. (T-Mobile) a special exception to construct a cellular communications tower. The Zoning Board imposed conditions on its approval of T-Mobile's special exception to cure what it described as "minor" deficiencies in T-Mobile's application. Because the record lacks evidence to support the Zoning Board's premise that T-Mobile can move the location of its cell tower in a way that will comply with the applicable zoning requirements, we will reverse.
In July 2008, T-Mobile filed an application for a special exception to construct a cell tower in a 43.77-acre cemetery owned by Bedford Memorial Park, LLC (Bedford). T-Mobile proposed to locate its 150-foot high tower on a plot of land, 40 feet by 20 feet, in a corner of the cemetery that it leased from Bedford. The cemetery is located in the Parks District in the City of Pittsburgh, where a cell tower is permitted by special exception. The cemetery is bordered by Residential and Commercial Districts.
In August 2008, the Zoning Board conducted a hearing on T-Mobile's special exception application, which was opposed by area residents, including the appellants, David and Diane Blancett-Maddock. The issue at the hearing was whether T-Mobile's proposed cell tower satisfied the terms of the Pittsburgh Zoning Code (Zoning Code) for a special exception.*fn1
A special exception can be granted only if the proposed use complies "with all applicable requirements of this Code.." ZONING CODE, Art. VII, §922.07.D.1. Among those "applicable requirements" are specific standards for "communication towers." Section 911.04.A.13(a)(5) requires, inter alia, that access to all towers be provided by an easement, or right-of-way, at least 20 feet wide.*fn2 In addition, towers over 101 feet in height must satisfy the criteria set forth in Section 911.04.A.13(c).*fn3 Relevant here are the requirements that a tower over At the August 7, 2008, hearing, Mike Hrycko, T-Mobile's radio frequency engineer; Jeff Jenkins, T-Mobile's site acquisition specialist; and John Craycraft, T-Mobile's project manager, appeared in support of T-Mobile's application. They did not offer direct testimony but made themselves available to respond to questions from the Zoning Board and from the objectors.
In response to inquiries, Jenkins explained that the cell tower meets the setback requirements of 300 feet. He explained that this determination was made by measuring the distance between the homes located in the Residential District bordering the cemetery and the site of the proposed tower. Hrycko explained that the cell tower needed to be 150 feet high in order to provide a signal sufficient to close T-Mobile's coverage gaps. Hrycko and Jenkins explained that their efforts to find an alternate site had been unsuccessful because other sites were not high enough to close the coverage gap for in-house reception caused by hills in the area that block wireless cellular signals. Craycraft explained that T-Mobile's proposed monopole cell tower structure would support at least three cellular communications carriers; would require little maintenance; and was "as quiet as a refrigerator." Notes of Testimony, 8/07/2008, at 45 (N.T. __); Reproduced Record at 45a (R.R. ___).
In opposition to T-Mobile's application, City Council staff persons testified. Joe Day, of Councilman Jim Motznick's office, expressed concern that parks are not a good place for cell towers and that children would be able to scale the proposed 6-1/2 foot fence around the tower. Day also noted that T-Mobile's leased lot was closer than 300 feet to homes in a neighboring residential district. The borders of that particular residential district do not actually touch the borders of the cemetery because a narrow strip of land zoned commercial separates the cemetery from that residential district. However, Day contended that "adjacent," as used in Section 911.04.A.13(c)(1)(iii) of the Zoning Code, was not synonymous with "abutting." Accordingly, the cell tower violated the 300 foot setback with respect to "adjacent" homes. Ken Wolfe, from Councilman Bruce Kraus's office, objected to the location of the tower because it would intrude upon the view of homeowners.
Three property owners objected. David Blancett-Maddock expressed doubts that T-Mobile had met its burden of showing that it had attempted to locate its cell tower on an existing structure that was farther from his family's residence. He noted that there were numerous cell towers in the area that could have been used, and he agreed with Day's interpretation of "adjacent." Diane BlancettMaddock testified that the cell tower would be visible from every floor in her house, which is located directly across the street from the proposed cell tower site. She challenged T-Mobile's claim that it could not use a cell tower located in a nearby shopping center, noting that there were no hills between that cell tower and the one proposed by T-Mobile. Dawn Harder testified that the cemetery serves as the community's park, where people walk and exercise. She complained that the cell tower will block the view of a war memorial; diminish property values; create a "huge eyesore;" and present a danger to migrating birds. N.T. 129; R.R. 129a. Finally, Harder testified that she received excellent T-Mobile service coverage inside her home and was, accordingly, skeptical about T-Mobile's claims that a coverage gap existed.
On October 2, 2008, the Zoning Board granted T-Mobile's special exception application, finding that the objectors presented only speculative concerns, not evidence. Nevertheless, the Zoning Board also found that T- Mobile's proposed use failed to satisfy two of the specific objective Zoning Code requirements: (1) the 300 foot setback from adjacent residential properties; and (2) the 20 foot wide requirement for its access road. The proposed tower was found to be less than 300 feet from "adjacent" residential lots, and the access road was only 12 feet wide. The Zoning Board agreed with the objectors that a cell tower must be 300 feet away from a residence, regardless of whether that residence is located in a residential district that touched the boundary of the cemetery. However, the Zoning Board believed T-Mobile could cure these "minor" deficiencies by moving the cell tower to another location in the cemetery and by widening the access road. Accordingly, it approved the special exception subject to the conditions that T-Mobile find another spot in the cemetery and widen the access road.
The objectors appealed, and T-Mobile and the City of Pittsburgh intervened in their appeal. The trial court affirmed the Zoning Board's adjudication, concluding that the record supported the Zoning Board's findings and that its conditions cured the application's deficiencies. The Blancett-Maddocks now appeal to this Court.
On appeal,*fn4 the Blancett-Maddocks raise one issue for our consideration. They contend that the Zoning Board erred by granting T-Mobile's request for a special exception because conditions cannot be used to cure an application that has been found, as here, not to satisfy the objective standards of the Zoning Code.*fn5 T-Mobile responds that the Zoning Board's conditions were appropriate because T-Mobile did not have the advantage of knowing the Zoning Board's "newly-announced interpretation of the 300-foot separation provision" when it prepared its application. Appellee's Brief at 9.
A special exception is a permitted use to which the applicant is entitled if the applicant demonstrates compliance with the specific, objective requirements contained in a zoning ordinance and if the zoning board determines that the use would not adversely affect the community. Berlant v. Zoning Hearing Board of Lower Merion Township, 279 A.2d 400, 401 (Pa. Cmwlth. 1971). The applicant has the burden to show that its application complies with the specific criteria delineated in the ordinance. Bray v. Zoning Board of Adjustment, 410 A.2d 909, 910 (Pa. Cmwlth. 1980). By showing compliance with the specific criteria, the applicant establishes that the proposal is presumptively consistent with the promotion of the public health, safety and welfare. Id. at 911. To overcome this presumption, an objector must prove to a high degree of probability that the impact from the proposed use will substantially affect the health, safety and welfare of the ...