Argued: December 12, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH M.
COSGROVE, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior
Tower Associates, LLC (Applicant) asks whether the Court of
Common Pleas of Lackawanna County (trial court) erred in
affirming a decision of the City of Scranton Zoning Hearing
Board (ZHB), which, based on a split decision, technically
denied Applicant's request for a special exception to
construct a monopole (commercial communications) tower.
Applicant asserts the ZHB erred in denying its special
exception request where it presented sufficient evidence to
show its entitlement to special exception approval under the
City of Scranton Zoning Ordinance (zoning ordinance). Upon
review, we reverse.
2015, Applicant filed an application with the ZHB seeking a
special exception to construct a monopole communications
tower at 2630 Winfield Avenue in Scranton (property). The
property is located in a Light Industrial District (I-L).
ZHB held a hearing on the application. Attorney Timothy
Siegfried appeared with his client, Joseph Fitzsimmons of
Allegheny Tower Associates, Inc., on Applicant's behalf.
Fitzsimmons proposed to construct a 140-foot high monopole
communications tower on the property, which would replace an
existing 120-foot high guyed tower. Fitzsimmons testified:
the property is mostly surrounded by commercial or industrial
uses; the proposed use would comply with the zoning
ordinance's setback provisions; Applicant would provide
proper screening; and, the proposed use would not disturb the
neighborhood. Further, the proposed tower would not be
lighted, and it would comply with all Federal Communications
Walsh testified in opposition to Applicant's proposed
communications tower. He explained the existing guyed tower
is no more than two feet in diameter, and the new tower would
be approximately eight feet in diameter. Daryl Palmer also
testified in opposition to Applicant's proposed tower,
stating it would be unsightly to residential neighbors (in a
near-by zone) and dangerous if it fell on an adjoining gas
conclusion of the hearing, the four-member ZHB reached a
split decision, resulting in a deemed denial of
Applicant's special exception application.
subsequently issued a written decision in which it explained
that under Section 306(B) of the zoning ordinance, a
commercial communications tower is permitted by special
exception in an I-L zoning district. Further, Section 119(C)
of the zoning ordinance states that the ZHB shall approve any
proposed special exception if it finds adequate evidence
exists that the proposed use will satisfy: (1) all standards
listed in Section 118(C)(4) of the zoning ordinance; (2) the
specific standards for the proposed use in Sections 402 and
403 of the zoning ordinance; and, (3) all other applicable
zoning ordinance requirements.
explained that Section 118(C)(4) addresses issues relating to
traffic, safety, storm water management and impact on the
neighborhood. In particular, Section 118(C)(4)(e) states the
proposed use "will not significantly negatively affect
the desirable character of an existing residential
by a two-to-two vote, the ZHB technically denied
Applicant's special exception application because the
proposed tower did not meet the standard set forth in Section
118(C)(4)(e) of the zoning ordinance, that the proposed use
will not significantly negatively affect the desirable
character of an existing residential neighborhood. Applicant
appealed to the trial court.
taking additional evidence, the trial court issued an order
affirming the ZHB. Applicant appealed to this Court, and the
trial court directed it to file a concise statement of the
errors complained of on appeal, which it did.
subsequently filed opinion pursuant to Pa. R.A.P. 1925(a),
the trial court concluded the ZHB's determination that
Applicant did not prove its proposed use would not
significantly negatively affect the desirable character of an
existing residential neighborhood was supported by
substantial evidence. To that end, the ZHB credited the
testimony of the objectors (Palmer and Walsh) that the
proposed tower would have a substantial negative impact on
the existing residential neighborhood over Fitzsimmons'
trial court also rejected Applicant's argument that the
trial court erred in upholding the ZHB's decision based
on Conclusion of Law No. 15, which states: "By a vote of
2-2, the [a]pplication for a [s]pecial [e]xception was denied
finding the proposed tower would not meet the standards of
[Section 118 (C)(4)(e)]." ZHB Op., 6/15/15, Concl. of
Law No. 15. In response, the trial court explained the
hearing transcript clearly showed the ZHB voted two-to-two.
See ZHB Hr'g, 6/10/15, at 54-55. The trial court
noted that a tie vote is deemed a denial under applicable
law. The trial court further stated that, in its findings of
fact and conclusions of law, the ZHB adequately detailed its
reasons for denying the requested special exception. This
matter is now before us for disposition.
appeal,  Applicant begins by pointing out that a
special exception applicant has the duty to present evidence
and the burden of persuading the ZHB that its proposed use
meets the ordinance's objective requirements.
MarkWest Liberty Midstream & Res., LLC v.
Cecil Twp. Zoning Hearing Bd., 102 A.3d 549 (Pa. Cmwlth.
2014), appeal denied, 113 A.3d 281 (Pa. 2015)
(citing Morrell v. Zoning Hearing Bd. of Borough
of Shrewsbury, 17 A.3d 972, 975 (Pa. Cmwlth. 2011);
Greaton Props. v. Lower Merion Twp., 796 A.2d 1038,
1045-46 (Pa. Cmwlth. 2002)). Here, Applicant contends, it
satisfied this burden by presenting evidence that its
proposed tower would comply with all of the zoning
ordinance's requirements. Once an applicant meets this
burden, "a presumption arises that the use is consistent
with the health, safety and general welfare of the
community." Id. at 553. The burden then shifts
to the objectors to present evidence and persuade the ZHB
that the proposed use will have a generally detrimental
Applicant maintains, the objectors did not satisfy their
burden of showing the proposed tower would be detrimental to
public health, safety and welfare. Applicant argues that, in
attempting to satisfy this burden, the objectors produced no
sufficient, credible evidence; instead, they relied solely on
speculation and unfounded personal opinions. Because
Applicant proved its proposed tower would comply with all
zoning ordinance requirements, and the objectors did not show
the tower would have a detrimental effect, Applicant asserts,
the ZHB should have approved the special exception
argues the ZHB's findings and conclusions state, without
explanation, that the proposed tower would not meet the
standards of Section 118(C)(4)(e) of the zoning ordinance,
which requires that a proposed use "not significantly
negatively affect the desirable character of an existing
residential neighborhood." Applicant contends the
ZHB's findings and conclusions offer no explanation or
analysis as to how the ZHB reached this conclusion.
Further, according to Applicant, there is nothing in the
transcript to support any such determination.
asserts that, pursuant to Section 306(B) of the zoning
ordinance, a commercial communications tower, like the
proposed tower, is permitted by special exception in the I-L
zoning district. Section 119(C) of the zoning ordinance
states that the ZHB shall approve any proposed special
exception if it finds adequate evidence that the proposed use
will meet: (1) all standards listed in 118(C)(4) of the
zoning ordinance; (2) specific standards for the proposed use
listed in Sections 402 and 403 of the zoning ordinance; and,
(3) all other applicable zoning ordinance requirements.
Applicant notes Section 118(C)(4) of the zoning ordinance
discusses additional criteria that must be met prior to
approval of special exception requests. Applicant then
details the record evidence that it contends shows its
proposed tower satisfies all of these criteria.
also maintains the record lacks substantial evidence that its
proposed tower would substantially affect the health, safety
and welfare of the community. Applicant argues that at the
ZHB hearing, after Applicant presented evidence to establish
the proposed tower met the zoning ordinance's objective
requirements, two objectors (Walsh and Palmer) ...