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In re Appeal of Holtz

November 4, 2010

IN RE: APPEAL OF JOHNA HOLTZ, ET AL FROM DECISION OF THE RIDGWAY BOROUGH ZONING HEARING BOARD
APPEAL OF: JOHNA HOLTZ, MICHAEL AND BARBARA CAGGESO, JOHN S. CAGGESO (A/K/A STEVE CAGGESO) AND JOANNE CAGGESO AND WILLIAM AND ANN DEVLIN



The opinion of the court was delivered by: Senior Judge Friedman

Argued: September 14, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Johna Holtz, Michael and Barbara Caggeso, John S. Caggeso (a/k/a Steve Caggeso) and Joanne Caggeso and William and Ann Devlin (together, Property Owners) appeal from the December 31, 2009, order of the Court of Common Pleas of the 59th Judicial District (Elk County Branch) (trial court), which dismissed their appeal from the decision of the Zoning Hearing Board of the Borough of Ridgway (ZHB) to grant Pegasus Tower Company (Pegasus) a special exception and variance in order to build a 195-foot communications tower. We affirm.

Pegasus filed an application with the ZHB on December 29, 2004, seeking a special exception and variance in order to build its proposed tower on property it leases from Ridgway Area School District. (ZHB's Findings of Fact, No. 1.) The property is located in the A-1 Conservation zoning district, which has a height restriction of fifteen feet. (ZHB's Findings of Fact, Nos. 4, 6.) After a public hearing on the matter, the ZHB issued a written opinion granting the special exception and variance.

Property Owners appealed the ZHB's decision to the trial court, which remanded the matter to the ZHB to cure certain procedural errors. The ZHB again granted Pegasus the special exception and variance, and Property Owners appealed to the trial court. The trial court affirmed, and Property Owners appealed to this court. This court remanded the matter to the ZHB to prepare written findings of fact as required by section 908 of the Pennsylvania Municipalities Planning Code (MPC)*fn1 and the Borough of Ridgway Zoning Ordinance (Zoning Ordinance). In re Johna Holtz, (Pa. Cmwlth., Nos. 2328 and 2329 C.D. 2005, filed March 13, 2007) (Holtz I), slip op. at 9-10. This court specifically stated that, with regard to the special exception, the ZHB was required to make a finding concerning the general compatibility of the proposed tower with adjacent properties and other property in the zoning district. Id., slip op. at 10.

On remand, the ZHB adopted the findings of fact proposed by Pegasus. With regard to the general compatibility of the proposed tower with adjacent properties and other property in the district, the ZHB found, based on the testimony of Pegasus' zoning manager, Harold Timmons, as follows:

The tower site is located in a wooded area which is approximately 1,800 feet distant from any school buildings and over 1,000 feet distant from the nearest residence.

There are electric transmission lines crossing the property. There will be limited human access to the site, which will not substantially disturb the wooded, rural character of the immediate area around the tower site. The site is near the top of a hill, which is a common place for locating communication towers in the area surrounding Ridgway because of the varying topography of the area. The proposed tower is generally compatible with adjacent properties and other property in the district.

(ZHB's Findings of Fact, No. 15(H).) With regard to the variance, the ZHB stated that it granted the variance pursuant to section 406.2 of the Zoning Ordinance, which authorized the ZHB to grant a height variance for a structure in any zoning district if the yard depths are increased one foot for each additional foot of height and the structure does not constitute a hazard. (ZHB's Findings of Fact, No. 16.)

Property Owners appealed to the trial court for a third time, and once again the trial court dismissed the appeal. Property Owners are again before this court,*fn2 arguing that the ZHB abused its discretion and erred as a matter of law in granting the special exception and the variance.

With respect to the special exception, Property Owners contend that the trial court erred or abused its discretion in concluding that Pegasus presented sufficient evidence to prove the tower would be compatible with adjacent properties and other property in the district as required by section 907.2(H) of the Zoning Ordinance.*fn3 We disagree.*fn4

An abuse of discretion will be found only if the zoning board's findings are not supported by substantial evidence. Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa. Cmwlth. 2002). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Here, a reasonable person could conclude from the testimony of Timmons that the proposed communications tower would be generally compatible with the adjacent property and other property in the zoning district.

Timmons testified that: the site of the proposed tower is located in a wooded area at least 350 feet from the nearest property line and 1,042 feet from the nearest residence; the proposed tower would have no lighting; there are no environmental issues; there are other tall structures on the property, i.e., power lines and football field lights; screening and buffering would be unnecessary because the site is heavily vegetated with mature trees; only the minimum number of trees would be cleared; there would be limited access to the site; the tower would not substantially disturb the wooded, rural character of the area; and the site is near the top of a hill, which is a common location for communications towers in the mountainous Ridgway area. (N.T., 1/25/2005, at 9-10.) This testimony, ...


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