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Vineyard Oil and Gas Co. v. North East Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

July 31, 2019

Vineyard Oil and Gas Company, Appellant
v.
North East Township Zoning Hearing Board
v.
Capital Telecom Holdings, LLC

          Argued: February 11, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ANNE E. COVEY, Judge (P.) HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION

          ANNE E. COVEY, JUDGE.

         Vineyard Oil and Gas Company (Objector) appeals from the Erie County Common Pleas Court's (trial court) April 16, 2018 order affirming the North East Township (Township) Zoning Hearing Board's (ZHB) decision granting Capital Telecom Holdings, LLC's (Applicant) variance and special exception application (Application). There are three issues before this Court: (1) whether the ZHB erred as a matter of law by concluding that Applicant's evidence was sufficient to satisfy the requirements under the Pennsylvania Municipalities Planning Code (MPC)[1] and the Township Zoning Ordinance (Ordinance) for a dimensional variance; (2) whether the ZHB erred as a matter of law by concluding that Applicant's evidence was sufficient to satisfy the Ordinance requirements for a special exception to erect a self-supporting cell tower structure in lieu of a monopole structure for cell tower antennas; and (3) whether the ZHB erred as a matter of law by finding that the Telecommunications Act of 1996 (TCA)[2] supported the grant of the dimensional variance and special exception.[3]

         Applicant is a limited liability company that operates within the Commonwealth of Pennsylvania (Pennsylvania) and constructs, owns, and manages wireless communications facilities in Pennsylvania and elsewhere. Objector owns real property located at 10299 West Main Street, North East, Pennsylvania, which is directly adjacent to the north of the property owned by Jacob R. Jones (Jones) located at 10325 West Main Street, North East, Pennsylvania (Property). The Property, which consists of 5.58 acres and contains a salvage yard, septic tank, gas well and an automobile repair business, is located in the Township's B-2 Industrial District and, under the Ordinance, a wireless communications facility is a use permitted therein.

         Jones also owns adjacent real property to the south and southwest of the Property. On September 19, 2016, Jones and Applicant entered into an Option and Telecommunications Facility Lease Agreement (Agreement). Under the Agreement, Jones leased a portion of the Property to Applicant for the purpose of erecting and operating a wireless communications facility thereon.

         Pursuant to the Ordinance, if a new antenna support structure is erected in the Township, the minimum distance between its base and any adjacent property must be equal to the maximum height of the antenna and antenna support structure. See Section 1106.1(E) of the Ordinance. In addition, although a monopole antenna support structure is ordinarily required, the ZHB may approve the use of a freestanding support structure where the applicant can establish the existence of certain additional requirements. See Section 1106.1(F) of the Ordinance.

         On July 6, 2017, Applicant submitted the Application to the ZHB, therein requesting a variance from the Ordinance's setback requirements and for the construction of a freestanding antenna support structure in lieu of a monopole support structure. According to the Application, Applicant proposed to construct a 195-foot tower designed to accommodate collocation by other telecommunications carriers and emergency services. Since the Ordinance ordinarily requires the base of the proposed tower to be placed at a distance of at least 195 feet from adjoining properties, Applicant sought approval for the following distances between the proposed tower's base and the adjoining properties: 54 feet, 4 inches to the north; 132 feet, 4 inches to the south; 113 feet, 5 inches to the east; and 114 feet, 3 inches to the southwest. Thus, Applicant sought dimensional variances of 140 feet, 8 inches to the north; 62 feet, 8 inches to the south; 81 feet, 7 inches to the east; and 80 feet, 9 inches to the southwest. In addition, Applicant expressed its intent to provide access/utility easement to the Property, and have the proposed tower surrounded by a fenced compound wherein all associated equipment would be installed.

         On August 22, 2017, the ZHB conducted a hearing at which Applicant presented expert testimony from Verizon Wireless' Radio Frequency Engineer Matt Wierzchowski (Wierzchowski) who related the details of the Application. Applicant also presented the testimony of Jones, Applicant's representative Scott Von Rein (Von Rein), and site acquisition specialist Rich Hanson (Hanson). In addition, the ZHB called Township Zoning Officer Russ LaFuria (LaFuria) to testify. Objector's attorney cross-examined Applicant's witnesses and raised objections, but presented no evidence. At the conclusion of the hearing, the ZHB unanimously voted in favor of granting the Application.

         On October 6, 2017, the ZHB issued its decision. Objector appealed to the trial court on October 27, 2017.[4] On March 28, 2018, the trial court held oral argument. By April 16, 2018 opinion and order, the trial court affirmed the ZHB's decision. Objector appealed to this Court.[5] On May 15, 2018, the trial court ordered Objector to file a Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors complained of on appeal (Rule 1925(b) Statement). Objector filed its Rule 1925(b) Statement on June 4, 2018. On June 28, 2018, the trial court filed its opinion in response thereto.

         Objector first argues that Applicant's evidence was insufficient to satisfy the requirements under the MPC and the Ordinance for a dimensional variance.

Initially, Section 1106.1(E) of the Ordinance provides:
Setbacks from Base of Antenna Support Structure
If a new antenna support structure is constructed (as opposed to mounting the antenna on an existing structure), the minimum distances between the base of the support structure or any guy wire anchors and any property line or right-of-way line shall be equal to the maximum height of the antenna and antenna support structure.

Reproduced Record (R.R.) at 402a (Ordinance § 1106.1(E)). With respect to a variance therefrom, Section 703 of the Ordinance governs:

In accordance with the [MPC], the [ZHB], shall hear requests for variances where it is alleged that the provisions of this Ordinance inflict unnecessary hardship upon the applicant. The [ZHB] may grant a variance provided the following findings are made where relevant.
703.1
That there are unique physical circumstances or conditions including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical condition peculiar to the particular property or use, and that unnecessary hardship[6] is due to such conditions and not the circumstances or conditions generally created by the provisions of the [] Ordinance in the neighborhood or district in which the property or use is located.
703.2
That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the [] Ordinance, and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
703.3
That such unnecessary hardship has not been created by the applicant.
703.4
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor weaken the validity of the zoning, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
703.5
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least deviation from the regulation in issue.

R.R. at 394a (Ordinance § 703); see also Section 910.2 of the MPC, 53 P.S. § 10910.2.[7]

Here, the ZHB made the following relevant findings:[8]
9. The stream bisecting the [] Property, the floodplain conditions on the western portion of the [] Property, and the size of the [] Property create an unnecessary hardship on [Applicant].
10. Because of the unnecessary hardship set forth in Paragraph 9 above, [Applicant] cannot construct the proposed tower in strict conformance with the required setbacks.
11. The unnecessary hardship was not created by [Applicant] or [Jones].
12. The reduced setbacks will not alter the essential character of the industrial neighborhood adjacent to the [] Property. It is noted that Section 703.4 [of the Ordinance] does not require or permit the [ZHB] to determine whether the proposed tower itself will alter the essential character of the neighborhood, but whether the setback variances will alter the essential character of the neighborhood, the proposed tower being a permitted use in the B-2 Industrial District.
13. The requested dimensional variances . . . are the minimum variances necessary to afford relief to [Applicant].

R.R. at 16a-17a (ZHB Dec. at 8-9).

At the ZHB hearing, Von Rein testified:
To the west of [] Jones' property - they're both [] Jones' property, the one we're proposing the tower on and, of course, the one to the west, there's a stream that goes in between those two properties. All the way down to the railroad tracks to the west and including, of course, the stream is primarily a wetlands, wet properties, which would -- typically are discouraged to build and perhaps even prohibited.

R.R. at 328a. Von Rein further related:

We certainly looked at the entire [P]roperty. We looked at several properties in the area to try to find a suitable location, [] Hanson can certainly go into detail if you would like. But on this particular [P]roperty, [] Jones can testify, I believe, there's a gas well on that [P]roperty. He also is running a repair shop there. There's a septic field also that we had to avoid.[9] So there's several challenges on this ...

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