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Northeast Pennsylvania Smsa Limited v. the Scott Township Zoning Hearing Board V.

April 18, 2011

NORTHEAST PENNSYLVANIA SMSA LIMITED PARTNERSHIP, D/B/A VERIZON WIRELESS
v.
THE SCOTT TOWNSHIP ZONING HEARING BOARD V. JOHN SMARGIASSI, JR., ANN MARIE SMARGIASSI, KEVIN LORENZETTI, SUSAN LORENZETTI AND MELANIE BRENZEL APPEAL OF: JOHN SMARGIASSI, JR., ANN MARIE SMARGIASSI, KEVIN LORENZETTI AND SUSAN LORENZETTI



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

Argued: March 7, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY JUDGE COHN JUBELIRER

John Smargiassi, Jr., Ann Marie Smargiassi, Kevin Lorenzetti, and Susan M. Lorenzetti*fn1 (collectively, Neighbors), appeal from two orders of the Court of Common Pleas of Lackawanna County, (trial court), relating to a dimensional variance permitting Northeast Pennsylvania SMSA Limited Partnership d/b/a Verizon Wireless (Verizon), to erect a monopole cell phone tower (the Tower) near Neighbors' properties. The trial court issued two orders: 1) granting Neighbors intervention, but limited them to addressing only those issues raised by Verizon in its appeal from the denial of a variance by the Scott Township (Township) Zoning Hearing Board (Board); and 2) reversing the Board's denial of Verizon's requested dimensional variance for the Tower. On appeal, Neighbors argue that the trial court erred in: 1) determining that the Board erroneously denied Verizon's requested dimensional variance on the grounds that the variance would alter the character of the neighborhood, endanger public safety, or impair the use or future development of neighboring properties; and 2) limiting Neighbors to the issues raised by Verizon's appeal and not considering the other elements necessary for the grant of a variance.*fn2

On March 19, 2009, Verizon applied for a dimensional variance to construct the Tower on a 70' by 70' parcel of land owned by the Township (the Property),*fn3 which had agreed to lease the Property to Verizon for construction of the Tower. The Tower is a conditional use in the zoning district in which the Property is located. Section 422.2(c)(2)(j) of the Township Zoning Ordinance requires that a communications tower, such as the Tower, have setbacks equal to one-and-a-half times the communications tower's height. Verizon planned the Tower to be 190 feet tall with an eight-foot lightning rod--198 feet tall in total--which would require setbacks of 297 feet pursuant to Section 422.2(c)(2)(j). In its variance application, Verizon requested a dimensional variance to allow the following setbacks: "South - 145'; West - 47'; East - 178'; North - 55'." (Zoning Hearing Board Application at 1, R.R. at 249a.)

The Board held a hearing on the variance on April 21, 2009 (First Hearing). The First Hearing was advertised*fn4 and, per the Township's customary practice, notice was mailed to nearby landowners. However, due to a recent renumbering of street addresses, the neighboring landowners did not receive the mailed notices and none of them attended the First Hearing. At the First Hearing, Verizon presented testimony from Seth Shafer, a civil engineer who prepared the plan for the Tower; Bruce Stegman, an engineer who explained the design of the Tower, including the weather conditions the Tower was designed to withstand and the extremely low incidence of failure or collapse of similar towers; and Mike Fisher, an electrical engineering expert who testified regarding the necessity for the Tower, the reason for its planned height, and why the Property was chosen as the ideal site for the Tower. No party appeared in opposition to the variance. At the conclusion of the First Hearing, the Board unanimously approved the grant of the variance by a voice vote.

Subsequently, the Board discovered that the neighboring landowners had not received notice of the hearing due to the address renumbering and convened a second hearing on May 13, 2009 (Second Hearing). Neighbors and other members of the public were present at the Second Hearing. Because the transcript from the First Hearing was not available, the Board asked Verizon to present the testimony from its witnesses again. Verizon first presented the testimony of Mr. Shafer, whose testimony was substantially the same as in the First Hearing. Verizon next presented testimony from Anthony Handley, an electrical engineer and wireless consultant. Mr. Handley testified that Verizon is licensed by the FCC and is required to provide reliable cell coverage in its service areas, which include the Township. Mr. Handley testified as to the reasoning and necessity for locating the Tower on the Property, as well as the necessity of the planned height of the Tower. He also testified that "the upper limit [electromagnetic field] exposure from the antennas are 190 feet center line [and] will be hundreds of times below what is defined as the FCC exposure limits or a hundred times below what are defined as safe standards for electromagnetic field safety." (Board Hr'g Tr. at 31-32, May 13, 2009, R.R. at 146a-47a.). Finally, Verizon presented testimony from Dave Shaffer. Mr. Shaffer testified regarding Verizon's selection of the Property as the site for the Tower.

Mr. Smargiassi testified that he believed that because his property was within 297 feet of the Tower--in fact, only 55 feet away if the variance was granted--a grant of the variance would prevent him from subdividing his property and giving it to his children or grandchildren to build on. He also testified that he believed the Tower would reduce the value of his property because parts of his property are within the Tower's fall radius and, therefore, cannot be built upon. He also testified that the Tower would impair the view from his property. Mrs. Smargiassi testified that she opposed the Tower because "cancer causing stuff . . . comes out of there." (Board Hr'g Tr. at 99, R.R. at 214a.) Mrs. Lorenzetti testified against the Tower because it would interfere with the view from her property and because she did not believe cell phone reception was necessary. Mr. Lorenzetti testified that he believed his property is within the fall radius of the Tower.

In its written decision, the Board held that Verizon met four of the five requirements for a dimensional variance, but found that:

The variance requested, if authorized, will alter the essential character of the district, will substantially or permanently impair the appropriate use or development of adjacent properties, and will be detrimental to the public welfare, all of which is evident from the testimony of adjoining landowners . . .

(Board Opinion ¶ 27(D).) Verizon appealed the Board's decision to the trial court and Neighbors sought to intervene. In their Petition to Intervene, Neighbors stated that they had inadequate time to prepare for the Second Hearing, lacked the benefit of counsel and, if permitted to intervene, would attempt to show that other factors required for a variance had not been met, in addition to the one found by the Board. The trial court permitted Neighbors' intervention, but limited them to arguing the issue raised by Verizon on appeal: whether the variance would alter the essential character of the neighborhood, negatively impact adjacent properties, or be detrimental to the public welfare. The trial court held that there was not substantial evidence in the record to support the Board's finding in this regard. The trial court noted that there was no expert testimony regarding the value of Neighbors' homes and that there was no evidence "to support the Board's finding that the danger of a catastrophic failure and resultant tower collapse required denial of Verizon's requested variance." (Trial Ct. Order at 2.) The trial court also reversed the Board's denial of Verizon's variance for the Tower and Neighbors now appeal to this Court.*fn5

Before this Court, Neighbors argue that the trial court erred in: 1) determining that the Board erred in denying Verizon's requested dimensional variance on the grounds that the variance would alter the character of the neighborhood, endanger public safety, or impair the use or future development of neighboring properties; 2) limiting Neighbors to the issues raised by Verizon's appeal and not considering the other elements necessary for the grant of a variance; and 3) failing to address Neighbors' arguments regarding lack of notice.*fn6

We first address Neighbors' argument that the trial court erred in determining that the Board erred in denying Verizon's requested dimensional variance on the grounds that the variance would alter the character of the neighborhood, endanger public safety, or impair the use or future development of neighboring properties. Section 611 of the Township Zoning Ordinance provides that the Board:

[S]hall have the right to authorize such variances from this Ordinance as are permitted under the Pennsylvania Municipalities Planning Code. The Board may grant a variance provided the following ...


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