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Tower Access Group, LLC v. The South Union Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

July 30, 2018

Tower Access Group, LLC, Appellant
v.
The South Union Township Zoning Hearing Board

          Submitted: June 4, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge.

          OPINION

          PATRICIA A. McCULLOUGH, Judge.

         Tower Access Group, LLC (TAG) appeals from the September 22, 2017 order of the Court of Common Pleas of Fayette County (trial court) affirming the decision of the South Union Township Zoning Hearing Board (Board), which denied TAG's application for a special exception to build a communication tower in South Union Township (Township).

         Facts and Procedural History

         The underlying facts are not in dispute and are garnered from the Board's decision, the trial court's original opinion and order dated September 22, 2017, as well as the trial court's Pa.R.A.P. 1925 opinion filed on December 15, 2017. On May 16, 2016, TAG applied for, and was granted, a zoning certificate to build a communication tower in a wooded area off 1 Grace Lane in the Township on property owned by Grace Brethren Church of Uniontown. Specifically, TAG sought to lease 10, 000 square feet of this property from the church to build a 180-foot monopole tower which would have an overall height of 188 feet. Once constructed, Verizon Wireless intended to install its antennas and equipment on the tower, including a 12-foot by 20-foot platform with a canopy and equipment cabinets. TAG would access the tower via a proposed gravel access road through the woods on the property and there would be a parking area nearby for service technicians. The initial construction of the tower was expected to last four to six weeks, after which the service technicians would visit the tower approximately once per month. TAG chose the particular location for the tower in order to improve cellular coverage in the area.

         However, the Township's Board of Supervisors subsequently revoked TAG's zoning certificate on July 27, 2016, noting that the proposed site for the tower was located in an R-1 Zone, which is reserved for residences and establishments that provide services to the community. Other types of construction in an R-1 Zone, such as public service facilities, are permitted by special exception. The Board of Supervisors determined that TAG's tower constituted a public service facility. TAG thereafter filed an application with the Board seeking to appeal the action by the Board of Supervisors and, alternatively, seeking a special exception for the tower.

         Board's Public Hearing

         The Board conducted a public hearing with respect to TAG's application on December 15, 2016. At this hearing, the Township first presented the testimony of John Over Jr., the Township's engineer. After complaints by residents, the Township's Board of Supervisors requested that Over review TAG's original application and the zoning certificate that was issued based upon this application. Upon completion of this review, Over sent a letter to TAG dated July 27, 2016, revoking the zoning certificate based upon his determination that the proposed tower use was not defined in the South Union Township Zoning Ordinance (Ordinance)[1]and was most similar to a public service facility, which is only permitted by special exception in an R-1 Zone. Over noted that at his request, Joseph Burke, the Township's Zoning Officer, sent an identical letter to TAG that same day. (Reproduced Record (R.R.) at 19a-24a.)

         On cross-examination, Over explained that the decision to revoke the zoning certificate originated with complaints from Township residents to the Board of Supervisors with respect to the issuance of the certificate and no posting of the property. Over could not cite to any specific provision of the Ordinance that authorizes the Board of Supervisors to conduct an administrative review when a use is neither permitted nor prohibited in the Ordinance, although he testified that such a provision existed in both the Ordinance and the Municipalities Planning Code (MPC).[2] (R.R. at 25a-31a.)

         TAG then presented the testimony of Matthew Smith, a professional civil engineer and owner of Red Swing Consulting Services, the company that prepared the plans attached to TAG's original application for a zoning certificate filed with the Township. Smith described the area around the proposed tower as a wooded area in between a shopping center and country club, with an elementary school to the south and residential properties to the north. He described the condition of the property as heavily wooded. He noted that the plans call for a 50-foot by 70- foot gravel compound area, to be accessed by a gravel road, and a 180-foot steel monopole placed in the center of the compound area with an 8-foot lightning rod on top. (R.R. at 35a-39a.)

         He did not anticipate any traffic concerns resulting from the site, stating that, after the initial construction time of four to six weeks, service technicians would visit the site maybe once a month. He also noted that the plans called for a 12-foot by 20-foot equipment platform on a concrete pad with three outdoor cabinets each about the size of a refrigerator and that the compound area would be secured by a locked gate and a six-foot-high wood slat fence that would also assist in concealing the equipment. With regard to setbacks, Smith testified that the site was irregularly shaped, similar to an arrowhead, and would be located 40 feet from the western property line, 800 feet from the northern property line, and 1, 200 feet from the eastern property line. He also stated that the site was 339 feet from Foreman Avenue, the closest public right-of-way. (R.R. at 40a-43a.)

         On cross-examination, Smith acknowledged that neither he nor his company prepared TAG's original application for a zoning certificate, only the plans attached to the same. He indicated that the exact width of the base of the tower was determined by a structural engineer based on many factors, including wind load, snow load, and other geotechnical conditions. He also indicated that the optimal height of the tower was determined by a radio frequency engineer. He admitted that he did not visit the proposed site prior to submission of the plans but that another representative visited and conducted a survey of the entire church property. He stated that Verizon Wireless will be the sole user of the tower once erected but that there was room for other carriers. Additionally, Smith testified that the leased site consisted of 10, 000 square feet and would include an access easement for the proposed gravel road, which would be 12 feet wide. (R.R. at 45a-62a.)

         TAG next presented the testimony of Shreyas Patel, a radio frequency/wireless engineer for Verizon Wireless. He explained that Verizon Wireless sought to improve in-building coverage, both residential and commercial, in the area of the proposed tower. He identified a color-coded map that he prepared for the benefit of the Board identifying the areas of in-building coverage in and around the Township and the desired areas where Verizon Wireless sought to improve this coverage via installation of the tower. He noted that improving in-building coverage, especially with respect to commercial buildings constructed of steel and concrete, requires a stronger signal. He included a map that showed the areas that would be reached by the new tower, which he said would definitely improve the in-building coverage in those areas. (R.R. at 64a-73a.)

         On cross-examination, Patel admitted that he did not visit the area but stated that a site acquisition person actually investigated the proposed location. He identified the tan or yellow shaded areas of his color-coded map as those where indoor wireless coverage was weak or unreliable. He noted that such areas were determined by measuring signal strength. However, he acknowledged that the maps he provided extended beyond the limits of the Township. He also acknowledged that ground elevation is an important consideration for placement of a tower, such as when dealing with a low-lying valley area, which would require a higher tower. He noted that he did visit the proposed location about a month before the December 15, 2016 hearing and did not observe any obstructions in the area that would impact the coverage to be provided by the new tower. He described his general role as advising the individual responsible for site acquisition regarding areas where a tower would be beneficial and then reviewing any potential sites. Patel further admitted that he had no statistics or information with him regarding complaints about coverage in the area from Verizon Wireless users. He characterized the proposed location of the new tower as the ideal location that would provide good coverage for the area. (R.R. at 73a-90a.)

         On re-direct examination, Patel explained that Verizon Wireless needed increased coverage and capacity in the area, the latter representing the maximum number of calls or data transmissions a tower can handle. (R.R. at 91a-92a.)

         TAG next presented the testimony of Scott Devlin of Unified Business Technologies, Inc., who was hired by Verizon Wireless as a site acquisition/real estate consultant. He testified that Verizon Wireless had negotiated a lease agreement with Grace Brethren Church of Uniontown, the owner of the property where the proposed tower would be located. He described how Verizon Wireless provided him with a search area request form, which identifies certain mapping coordinates where a new site is desirable. He noted that the proposed site was the primary candidate, but that he had investigated other sites within the Township. Subsequent to execution of the lease agreement, Devlin explained that TAG sought and obtained a zoning certificate for the proposed tower. He identified the July 27, 2016 letter from Over revoking the zoning certificate despite no known appeal of the issuance of the same, as well as TAG's letter in response dated August 3, 2016, questioning Over's authority, as Township engineer, to revoke the zoning certificate. He also identified the identical letter from Burke, the Township's Zoning Officer, also dated July 27, 2016, revoking the zoning certificate. Finally, he noted that survey work and design work were undertaken in between the grant and revocation of the zoning certificate. (R.R. at 100a-09a.)

         On cross-examination, Devlin confirmed that he was not an employee of TAG. He stated that he received the search area request form from Verizon Wireless in late February or early March of 2016. He explained that the form includes a map pinpointing the area where a new tower is needed, along with the ground elevation and tower height Verizon Wireless was proposing. He reiterated that he looked at other sites for the proposed tower, such as a nearby shopping center. He did describe the trees on the property owned by Grace Brethren Church of Uniontown as dictating the height of the proposed tower. He explained that he made the original deal with the church and then turned it over to TAG. (R.R. at 109a-17a.)

         Devlin testified that his company also prepared TAG's original application for the zoning certificate, which was not signed. He admitted that the application referenced a diesel generator as a back-up power source. Additionally, he acknowledged that he could not identify, without further research, any specific actions taken by TAG in between the grant and revocation of the zoning certificate. He indicated that the lease for the proposed site was terminable without further payment liability if TAG could not obtain the necessary permits or other approvals required to build the tower. Further, he acknowledged that the zoning certificate was never posted at the property despite language specifically requiring that the same be prominently displayed on the premises. (R.R. at 117a-34a.)

         Several objectors (Objectors) appeared at the hearing, represented by counsel. At the conclusion of Devlin's testimony, counsel for Objectors recalled Over to testify. Over testified that there are zones within the Township where cell phone towers are permitted by special exception and that other towers and antennas do exist in the Township. He estimated that approximately 57% of the Township is zoned in such a manner. He identified a map of the various zoning districts within the Township. He opined that TAG would require subdivision approval for the leased area of the property. He noted that Objectors are owners of properties that abut the church property and that five of these properties, which included residences, were within 188 feet of the proposed tower. (R.R. at 138a-49a.)

         On cross-examination, Over admitted that the letters revoking the zoning certificate made no mention of land development or subdivision of the property. He also acknowledged that the Ordinance does not contain a requirement that a tower maintain a setback equal to its height. (R.R. at 149a-50a.) On re-direct examination, he agreed that the Board could impose reasonable conditions on the grant of a special exception and that a setback equaling the height of the tower would be reasonable. (R.R. at 150a-51a.)

         Objectors next called Vincent DiBease, one of the neighboring landowners. He testified that his property was approximately 200 feet from the proposed tower site and that the tower would be visible from his property. He characterized the proposed site as sparse woods and noted that people walk through that area. He described diesel generators, of which he was very familiar having worked at the Hatfield Power Station, as very noisy and something that would disturb his sleep if activated during the night. He also believed that the tower would decrease the value of his property and create an eyesore. He noted that he never observed the zoning certificate posted on the church property. (R.R. at 154a-58a.)

         On cross-examination, DiBease explained that he and other people he had spoken to did not want to live next to a cell tower, citing the risk of the tower falling. He admitted that he was unaware which model diesel generator would be installed at the site, but ...


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