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Sluciak v. Cecil Township Board of Supervisors

Commonwealth Court of Pennsylvania

December 13, 2019

Dennis C. Sluciak, Appellant
v.
Cecil Township Board of Supervisors
v.
Crown Castle Towers 09 LLC
v.
Hidden Acres East Apartment Community

          Argued: October 4, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.

          OPINION

          MARY HANNAH LEAVITT PRESIDENT JUDGE.

         Dennis C. Sluciak (Objector) appeals an order of the Court of Common Pleas of Washington County (trial court) that affirmed the decision of the Cecil Township Board of Supervisors (Supervisors) to grant Crown Castle Towers 09, LLC (Crown Castle) a conditional use permit to construct a communication tower. Objector contends that the trial court erred in rejecting his land use appeal of the conditional use permit granted to Crown Castle. He asserts that the Supervisors made erroneous evidentiary rulings and misapplied the applicable ordinance. Discerning no merit to these claims, we affirm.

         Background

         Crown Castle seeks to build a communication tower on a property owned by Hidden Acres East Apartment Community (Hidden Acres), which is located in Cecil Township's (Township) C-1 General Commercial Zoning District. The tower will replace and relocate an existing communication tower from one location on the Hidden Acres property, where it has been since 1999, to another location closer to Objector's property. On December 13, 2017, Crown Castle submitted a conditional use application to the Township, which described the proposed tower as follows:

Telecommunications facility consisting of proposed 195' self support [tower] with 4' lightning rod within a new 90 x 90 fenced compound within a 100 x 100 lease area in addition to a proposed 1, 576 L.F. 12' wide non-exclusive access drive.

Reproduced Record at 153a (R.R.__).

         Section 1212(A) of the Township Unified Development Ordinance (Ordinance)[1] permits "communications facilities, including towers and antenna additions to existing structures," in the C-1 Zoning District as a conditional use. Ordinance, §1212(A). After the Township Planning Commission recommended approval of Crown Castle's development plan, the Supervisors held a public hearing on the conditional use application, at which Crown Castle presented witnesses and documentary evidence.

         Objector, owner of an adjacent 34-acre property, opposed the communication tower, which he believed was being moved to reduce the "negative impact" on the Hidden Acres apartment complex at the expense of adjacent property owners. Notes of Testimony, 3/12/2018, at 92 (N.T.__); R.R. 112a. The tower will be built immediately adjacent to the most valuable and developable part of Objector's land, which is elevated and offers scenic views. Objector submitted pictures and Google Earth images of Crown Castle's existing tower and the approximate location of the proposed tower. He also submitted a joint letter of other residents, complaining that the new tower will "overshadow[] and negatively impact[] 70 acres of undeveloped property and 7 residential properties." R.R. 364a. At present Objector uses his property for a construction business, but he believes "there is a future" in another "best use development." N.T. 98-99; R.R. 118a-19a.

         Objector referred the Supervisors to Crown Castle's 2014 application for a conditional use permit and a variance to construct a communication tower. Objector explained that the evidence on that application was "discussed and brought in front of a judge in Washington County" and related to "this same cell tower." N.T. 86-87; R.R. 106a-07a. The trial court in that case reversed the variance that had been granted on Crown Castle's application. Crown Castle objected to the relevancy of the 2014 application and decision thereon because it involved a variance from the setback requirements. Under the current Ordinance, a setback variance is not needed. The Supervisors sustained Crown Castle's objection.

         The Supervisors advised Objector that the instant proceeding was the "time and place" for him to present evidence of "adverse impacts of this particular cell tower." N.T. 92; R.R. 112a. Objector replied, "that's what I am doing. I am presenting that as evidence that relocating that cell tower from its present location to the new location is lessening [Hidden Acres'] negative impact." Id.

         On May 7, 2018, the Supervisors granted Crown Castle a conditional use permit for its new communication tower, subject to strict compliance with the 199-foot "setback from the edge of the [c]ommunication [f]acility pad to the property lines." Supervisors' Decision at 29. The Supervisors found that Crown Castle satisfied the specific requirements for a communication tower as set forth in Section 1212 of the Ordinance. The burden then shifted to Objector to show that the impact of the proposed tower "will be greater than would normally be expected" and will "pose a substantial threat to the health, safety and welfare of the community." Supervisors' Decision at 22 (quoting Szewczyk v. Zoning Board of Adjustment, 654 A.2d 218, 224 (Pa. Cmwlth. 1995)). The Supervisors held that Objector did not satisfy this burden; instead, objector focused upon Crown Castle's "motives" for relocating the existing tower. Id.

         Objector appealed to the trial court and argued, inter alia, that the Supervisors erred in refusing to take "judicial notice" of the record from Crown Castle's 2014 application for a conditional use permit and a variance. He also argued that the Supervisors abused their discretion by approving the conditional use without specifying the exact location for the communication tower. Objector did not challenge the Supervisors' holding that Crown Castle satisfied the specific standards in the Ordinance for a communication tower.

         Trial Court Decision

         The trial court affirmed the Supervisors without taking additional evidence. The trial court held that the Supervisors should have taken "judicial notice" of the trial court's earlier decision that sustained Objector's appeal of the setback variance granted by the Township's Zoning Hearing Board. Trial Court op. at 3 n.2. However, the trial court went on to explain that judicial notice did not include "the entire record of testimony over the objection of a party." Id. at 7. Indeed, the trial court observed that it would have been "reversible error" for the Supervisors to incorporate the entire file of "unrelated litigation" and use prior factual findings in a subsequent matter. Id. The trial court held that neither its decision on the 2014 application nor the record of testimony from that proceeding could be used to sustain Objector's evidentiary burden in this case.

         The trial court further held that the Supervisors did not err by granting Crown Castle's conditional use application without specifying the precise location for the communication tower. It was sufficient that the Supervisors required that the facility pad be placed at least 199 feet from the property line. Objector appealed to this Court.[2]

         Appeal

         On appeal, Objector raises six issues for our consideration, which we have combined and reordered for clarity. First, he argues that the trial court erred by holding that the Supervisors did not have to take judicial notice of Crown Castle's 2014 application and the record thereon. Second, he argues that the Supervisors abused their discretion by not admitting the record of the 2014 application because it established the adverse impact of the proposed tower. Finally, he argues that the trial court erred by affirming the Supervisors' approval of the conditional use without specifying the precise location for the communication tower. Objector asks this Court to remand the matter with the direction that the Supervisors "take judicial notice of the record of the 2014 [c]ase and hear additional testimony from [Objector's] expert witness landscape architect." Objector Brief at 24. We address these issues seriatim.

         Analysis

         A conditional use is defined as "[a] use permitted in a particular zoning district pursuant to the provisions in Article VI" of the Municipalities Planning Code (MPC).[3] Section 107(a) of the MPC, 53 P.S. §10107(a). A governing body has authority to grant a conditional use "pursuant to express standards and criteria set forth in the zoning ordinance." Section 603(c)(2) of the MPC, 53 P.S. §10603(c)(2). A conditional use concerns only a proposed use of land, not particular design details of the proposed development. In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006). A conditional use proceeding follows the procedures applied in a special exception proceeding. In re Cutler Group, Inc., 880 A.2d 39, 42 (Pa. Cmwlth. 2005). Specifically, the applicant for a conditional use makes a prima facie case by proving compliance with the specific, objective criteria of the applicable zoning ordinance. Id. The burden then shifts to the objector to present sufficient evidence that "there is a high degree of probability that the use will cause [a] substantial threat to the community." Id. at 43. A conditional use evidences a legislative determination that such use will not have an adverse impact on the public interest in normal ...


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