Cellco Partnership v. North Annville Township Zoning Hearing Board

939 A.2d 430, 2007 Pa. Commw. LEXIS 701
CourtCommonwealth Court of Pennsylvania
DecidedDecember 17, 2007
StatusPublished
Cited by6 cases

This text of 939 A.2d 430 (Cellco Partnership v. North Annville Township Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cellco Partnership v. North Annville Township Zoning Hearing Board, 939 A.2d 430, 2007 Pa. Commw. LEXIS 701 (Pa. Ct. App. 2007).

Opinions

OPINION BY

Judge LEAVITT.1

Célico Partnership d/b/a Verizon Wireless appeals from the order of the Court of Common Pleas of Lebanon County (trial court), which affirmed the decision of the North Annville Township Zoning Hearing Zoning Board (Zoning Board) to deny Verizon’s request to locate a telecommunications tower in the Rural-Residential (R-l) District. The Zoning Board concluded that a cellphone tower was not compatible with a district intended for low-density residential development and farming. On the other hand, the Zoning Board held that Verizon could build a cellphone tower in the General Commercial District. Because the Zoning Ordinance permitted the erection of cellphone towers somewhere in the Township, albeit not where desired by Verizon, the Zoning Board rejected Verizon’s claim that the ordinance was unconstitutionally exclusionary. Finding no error in the trial court’s order, we affirm.

Verizon proposes to build a monopole cellphone tower, 195 feet tall, and place it in a 10,000 square-foot, fenced in area that will also house an equipment shelter. Verizon has leased the land for this purpose from Martin and Barbara Haubrich, whose 16.5 acre property is located in the Township’s R-l District. Verizon filed an application with the Zoning Board for a permit to construct the cellphone tower on the Haubrich property, asserting that it needs a tower there to close a gap in coverage.

The Township’s Zoning Ordinance2 does not list a cellphone tower as one of the uses expressly permitted in the R-l District, but Verizon’s application advanced three alternate theories to support the grant of a permit. First, Verizon believed that under the “savings provision” of the Zoning Ordinance, the Zoning Board could find a cellphone tower to be compatible with the uses expressly authorized in the R-l District, such as a municipal tower, and grant the permit as a permitted use. If the Zoning Board did not so find, Verizon’s second theory was that it was entitled to a variance for its cellphone tower because of the hardship it would otherwise suffer. Verizon’s third theory was that the zoning ordinance was unconstitutionally exclusionary with respect to cellphone towers, thereby entitling it to a permit.

The Zoning Board convened a hearing, at which Verizon began its case with a history of its investigation into an appropriate site for a tower. It considered a site where the Township had granted a variance to Nextel for a cellphone tower that was never built, as well as existing tall structures in the Township on which cellphone antennae could be placed. Verizon [432]*432rejected all alternatives. The Nextel site was located too far east and north to provide effective coverage, and there were no suitable tall structures in appropriate locations. Verizon explained that the Haub-rich property afforded an ideal location, with wooded areas that would partly conceal the tower. Verizon also presented testimony from Timothy Staub, a community planner, who opined that the Zoning Board could consider Verizon’s proposed tower to be similar to a municipal or principal utility structure, each of which is permitted in the R-l District, according to Staub.

In response, the Township contended that Verizon’s cellphone tower did not belong in the R-l District because the tower was a commercial activity that belonged in the Commercial District. Several neighbors (Objectors) whose homes were located near the proposed tower intervened to object to Verizon’s application. Objectors’ expert opined that Verizon could not substantiate its claimed gap in coverage, noting, inter alia, that Verizon used a desired signal strength ten times greater than it had used in other applications to erect a cellphone tower.3 This expert also explained how Verizon could achieve the coverage it wants by using co-located, or multiple, facilities of lesser height. Objectors’ real estate expert opined that Verizon’s cellphone tower would adversely affect the value of Objectors’ properties.

The Zoning Board denied Verizon’s request for a variance, holding that the company had failed to demonstrate that it needed a cellphone tower at the proposed height and only at the proposed location. Verizon appealed to the trial court, which remanded for a finding on the other theories pursued by Verizon, i.e., whether a cellphone tower was compatible with uses permitted in the R-l District and whether the Zoning Ordinance was exclusionary.

On remand, following oral argument and without taking additional evidence, the Zoning Board found that the cellphone tower was not compatible with the uses established by the Zoning Ordinance as permitted in the R-l District.4 However, the Zoning Board did find a cellphone tower to be compatible with the uses intended for the General Commercial District.5 The Zoning Board also rejected [433]*433Verizon’s argument that the proposed cellphone tower was similar to a “municipal” structure of some kind, which is defined as a structure as one “owned” by the municipality. It also held that a cellphone tower is wholly dissimilar to a “principal utility structure,” such as an electrical generating plant. The Zoning Board concluded that the Zoning Ordinance was not exclusionary because Verizon could construct a tower in the Commercial District. Incorporating by reference its earlier decision, the Zoning Board again denied the variance.

Verizon appealed to the trial court,6 where it contended that the Zoning Board erred as a matter of law in refusing to allow the tower in the R-l District as a structure similar to those permitted by the Zoning Ordinance and, alternatively, in concluding that the ordinance is not exclusionary. The trial court affirmed the Zoning Board’s interpretation of the Zoning Ordinance, and it agreed with the Zoning Board that because the cellphone tower was permitted in the Commercial District, the ordinance was not exclusionary. Based on these conclusions, the trial court affirmed the Zoning Board.

Verizon has appealed to this Court, seeking a reversal of the trial court on two grounds.7 First, Verizon contends that the Township’s Zoning Ordinance is de jure exclusionary with respect to cellphone towers, arguing that a cellphone tower is nothing like the uses intended for the Commercial District and, therefore, does not belong in that district. Stated otherwise, Verizon argues that the Zoning Board erred in its reading of the Zoning Ordinance. Second, Verizon contends that a cellphone tower is similar to a principal [434]*434utility structure and to a municipal structure and, therefore, is permitted in the R-1 District. Again, Verizon asserts that the Zoning Board did not correctly interpret the Zoning Ordinance.

Essentially, both of Verizon’s issues turn on the question of whether the Zoning Board has correctly interpreted the Zoning Ordinance. Accordingly, we begin with an examination of the Zoning Ordinance, the meaning of which disposes of both of Verizon’s issues.

It is true, as conceded by the Township, that the words “cellphone towers,” or their equivalent, do not appear in the Zoning Ordinance. It is impossible for a legislative body to anticipate every conceivable use of land and, therefore, the Zoning Ordinance includes a provision that authorizes the Zoning Board to determine whether to permit a use not specifically identified in the Zoning Ordinance.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gorsline v. Bd. of Supervisors of Fairfield Twp.
186 A.3d 375 (Supreme Court of Pennsylvania, 2018)
Horvath Towers III, LLC v. Zoning Hearing Board of Butler Township
247 F. Supp. 3d 520 (M.D. Pennsylvania, 2017)
Jojo Oil Co. v. Dingman Township Zoning Hearing Board
77 A.3d 679 (Commonwealth Court of Pennsylvania, 2013)
LaLEIKE v. WEST CHESTER BOROUGH
987 A.2d 230 (Commonwealth Court of Pennsylvania, 2010)
Cellco Partnership v. North Annville Township Zoning Hearing Board
939 A.2d 430 (Commonwealth Court of Pennsylvania, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
939 A.2d 430, 2007 Pa. Commw. LEXIS 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cellco-partnership-v-north-annville-township-zoning-hearing-board-pacommwct-2007.