Tu-Way Tower Co. v. Zoning Hearing Board of the Township of Salisbury

688 A.2d 744, 1997 Pa. Commw. LEXIS 16
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 21, 1997
StatusPublished
Cited by15 cases

This text of 688 A.2d 744 (Tu-Way Tower Co. v. Zoning Hearing Board of the Township of Salisbury) 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
Tu-Way Tower Co. v. Zoning Hearing Board of the Township of Salisbury, 688 A.2d 744, 1997 Pa. Commw. LEXIS 16 (Pa. Ct. App. 1997).

Opinion

COLINS, President Judge.

Tu-Way Tower Co. (Tu-Way) appeals the order of the Court of Common Pleas of Le-high County (common pleas court) affirming the decision of the Zoning Hearing Board of Salisbury Township (Board) denying Til-Way’s application for a special exception or variance to extend the height of its communications tower by 200 feet and/or to erect two new 200-foot communications towers and accessory buildings. We affirm.

Tu-Way owns twelve acres of land located on a mountain top in Salisbury Township (Township). In 1990, Tu-Way received a special exception to construct, and did in fact construct, a 200-foot communications tower upon this land with an unattended accessory budding housing electronics equipment. In 1994, Tu-Way filed with the Board two applications for a special exception or, in the alternative, for a variance to (1) add an additional 200 feet to the height of its tower and (2) erect two additional 200-foot communications towers together with unmanned accessory electronics buildings.

Prior to Til-way’s applications, however, the Township had given public notice of its intention to amend provisions of the Township’s Zoning Ordinance (Ordinance) affecting communications towers. In fact, a public meeting was held by the Township Planning Commission, and a public hearing was scheduled on the proposed changes prior to Til-Way’s applications. The Township enacted amendments to the Ordinance concerning communications towers shortly after Til-Way’s applications were filed (hereinafter, said amendments shall be referred to as the “New Ordinance”).

The New Ordinance differs from the prior Ordinance provisions (Old Ordinance) in one respect material to this case: it increased the setback requirements for a communications tower to the full height of the tower. The Old Ordinance required that the setback for a communications tower be only one-half of the height of the tower. Til-Way’s first application for a special exception proposed a 400-foot tower with setbacks of 222 feet on one side and 202 feet on the other.

[746]*746The Board denied Tu-Way’s applications for several reasons relevant to this appeal. First, it determined that Tu-Way’s proposal to increase the height of its tower would not be in conformance with the setback requirements of the New Ordinance. The Board applied the New Ordinance rather than the Old under the “pending ordinance doctrine,” which provides, generally, that “a building permit may be refused if at the time of application there is pending an amendment to the zoning ordinance which would prohibit the use of the land for which the permit is sought.” Marinari v. Zoning Hearing Board of New Hanover Township, 90 Pa.Cmwlth. 601, 496 A.2d 121, 123 (1985), petition for allowance of appeal denied, 520 Pa. 621, 554 A.2d 512 (1989).

Second, the Board determined that Tu-Way’s proposed 400-foot tower was a “communication or microwave tower” as defined by the Ordinance and not a “television/FM broadcast tower” as argued by Tu-Way. Both the Old and New Ordinances limit the height of communications or microwave towers to 200 feet; a television/FM broadcast tower may reach the height of 700 feet.

Third, the Board found that Tu-Way failed to meet a provision of the New Ordinance that requires that an applicant who proposes to construct a new tower demonstrate that existing towers owned by the applicant (or any affiliate or subsidiary) “cannot reasonably accommodate the telecommunications equipment planned for the proposed tower, the intent being to maximize the use of existing towers.” Section 402.16.J of the New Ordinance. A somewhat similar provision was found in the Old Ordinance, and the Board found that Tu-Way would have failed to meet the requirements under the Old Ordinance also. In part, these findings were based upon Tu-Way’s own evidence, which showed that there remains some space on its existing tower to accommodate new uses.

The common pleas court affirmed the Board’s denial of a special exception and/or variance. Although several other issues were raised and argued before the Board and the common pleas court, Tu-Way, on appeal to this Court, presents only the following three issues: (1) whether Tu-Way’s proposal, to extend its tower by 200 feet and/or add two additional 200-foot towers with accessory buildings, constitutes “land development” under the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202, and under the Township Ordinance; (2) assuming Tu-Way’s proposal constitutes “land development,” whether the pending ordinance doctrine is applicable to Tu-Way’s application; and (3) whether Tu-Way’s tower can be considered a television/FM broadcast tower allowing for a height greater than 200 feet. In a zoning appeal where the common pleas court takes no additional evidence, our scope of review is limited to determining whether the zoning hearing board manifestly abused its discretion or committed an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). A zoning hearing board abuses its discretion when its findings are not supported by substantial evidence. Id.

Although Tu-Way presents three issues before us, it does not directly address the basic issue presented in this case: whether the Board erred by denying Tu-Way’s applications for a special exception and/or variance. Nothing in Tu-Way’s brief indicates that it is challenging the Board’s determination regarding the denial of a variance. The three issues it raises touch upon the Board’s denial of a special exception to increase the height of the tower and perhaps to erect two ' new towers. Tu-Way, however, does not challenge the Board’s finding that there remains space on its existing tower for new business, which would prohibit the grant of a special exception under both the New and Old Ordinances. Therefore, even if we were to decide in Tu-Way’s favor under the three issues it raises, we would still be without a basis to reverse the Board. Assuming, however, that Tu-Way proposes to branch into new business in excess of its current capacity, we shall briefly address the issues raised by Tu-Way and explain why we do not believe the Board erred or abused its discretion with respect to them.

Tu-Way’s initial argument, that its proposal constitutes a land development or subdivision under the MPC and Ordinance, is signif[747]*747icant under the facts of this case because of the provisions of Section 603(c)(2.1) of the MPC, 53 P.S. § 10603(c)(2.1):

(2.1) when an application for ... a special exception ... is filed with the zoning hearing board ... and the subject matter of such application would ultimately constitute either a ‘land development’ as defined in section 107 [53 P.S. § 10107] or a ‘subdivision’ as defined in section 107, no change or amendment of the zoning, subdivision or other governing ordinance or plans shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed....

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Bluebook (online)
688 A.2d 744, 1997 Pa. Commw. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tu-way-tower-co-v-zoning-hearing-board-of-the-township-of-salisbury-pacommwct-1997.