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Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing Board

Commonwealth Court of Pennsylvania

January 10, 2017

Allegheny Tower Associates, LLC, Appellant
v.
City of Scranton Zoning Hearing Board

          Argued: December 12, 2016

          BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH M. COSGROVE, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          ROBERT SIMPSON, Judge

         Allegheny 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.

         I. Background

         In May 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).

          The 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 Commission regulations.

         James 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 station.

         At the conclusion of the hearing, the four-member ZHB reached a split decision, resulting in a deemed denial of Applicant's special exception application.[1]

         The ZHB 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.

         The ZHB 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 neighborhood." Id.[2]

         Ultimately, 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.

         Without 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.

         In a 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' contrary testimony.

         The 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.

         II. Discussion

         A. Contentions

         On appeal, [3] 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 effect. Id.

         Here, 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 application.

         Applicant 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.

         Applicant 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.

         Applicant 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) ...


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