Township of Derry vs. Zoning Hearing Board of Palmyra Borough, Lebanon County vs. Shenandoah Mobile, LLC No. 2015-00796

Civil Action-Law-Administrative-Appeal-Zoning Hearing Board-Variance-Notice of Deemed Approval-Cell Tower-Unique Physical Conditions of Property-Unnecessary Hardship-District Character-Personal and Economic Hardship

Shenandoah Mobile, LLC (“Shentel”) filed an application with the Zoning Hearing Board of Palmyra Borough seeking a variance to place a wireless communication facility on property it proposed to lease from the Borough of Palmyra that is zoned as an “Auto-Oriented/Commercial C-2 District” that does not permit wireless communication or cell towers. After hearings held on October 20, 2014 and November 17, 2014, the Zoning Hearing Board orally denied the application for variance following the hearing on November 17, 2014. However, the Zoning Hearing Board failed to issue a written decision with regard to the application within forty-five (45) days as required by the Municipalities Planning Code, 53 P.S. § 101 et seq. Shentel advertised a Notice of Deemed Approval as a result of the Zoning Hearing Board’s failure to file a written decision. The Township of Derry filed an appeal of the Notice of Deemed Approval.

1. In a deemed approval of a zoning application, the findings of the zoning board are a nullity, and the trial court on appeal must render its own findings of fact and conclusions of the law.

2. The Municipalities Planning Code requires that an applicant seeking a variance establish the following: (1) there are unique physical circumstances or conditions peculiar to the property and that unnecessary hardship results from such conditions, not circumstances or conditions generally created by the provisions of the zoning ordinance to which the property is subject; (2) there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance due to the physical circumstances or conditions and the authorization of a variance is necessary to enable reasonable use of the property; (3) such unnecessary hardship has not been created by the party seeking the variance; and (4) issuance of a variance will not alter the essential character of the distract, substantially or permanently impair the appropriate use or development of adjacent property or be detrimental to the public welfare. Section 10910.2(a).

3. The party seeking a variance has the heavy burden of proving that an unnecessary hardship will result if the variance is denied and that the proposed use will not be contrary to public interest.

4. To establish that an unnecessary hardship results from unique physical circumstances or conditions peculiar to the property, a party must show: (1) the physical features of the property are such that the property cannot be used for a permitted purpose; (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property has no value for any purpose permitted by the ordinance. A hardship must be unique to the property at issue, not a hardship arising from the impact of the ordinance upon the entire district. Personal or economic hardship does not warrant the allowance of a variance.

5. Shentel failed to carry its burden of establishing that unnecessary hardship was created by the unique physical circumstances of the property for which it sought allowance of a variance, as the record establishes that the hardship sought to be alleviated was Shentel’s desire to increase profitability or to maximize development potential, no evidence was presented that there was no possibility that the property could not be developed in strict conformity with the ordinance due to the physical circumstances of the property, the variance would alter the essential character of the neighborhood whose ordinance was designed to facilitate shopping via automobile in a safe and expedient manner and the property is surrounded by residential properties such that the allowance of the tower would be in direct contravention of the stated objective of Palmyra Borough in its ordinance to place towers away from residential properties.

L.C.C.C.P. No. 2015-00796, Opinion by Samuel A. Kline, Judge, March 29, 2016.

Anthony J. Nestico, Esquire, for Township of Derry

Michael S. Grab, Esquire, for Shenandoah Mobile, LLC

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No: 2015-00796

LAND USE APPEAL

TOWNSHIP OF DERRY, Appellant,

v.

ZONING HEARING BOARD OF PALMYRA BOROUGH, LEBANON COUNTY,

Appellee

SHENANDOAH MOBILE, LLC, Intervenor

ORDER

And now, to wit, this 29th day of March, 2016, upon consideration of Appellant’s Land Use Appeal from the deemed approval, the parties’ briefs, and the record of the case, the variance application is DENIED. Intervenor may file an appeal to the Commonwealth Court of Pennsylvania within thirty (30) days from the entry of this Order.

BY THE COURT:

SAMUEL A. KLINE, J.

ADJUDICATION, KLINE, J, March 16, 2016

Before this Court is the Township of Derry’s (hereinafter “Appellant”) appeal from the deemed approval of Shenandoah Mobile’s (hereinafter “Shentel”) variance application. For the reasons set forth herein, we affirm the Zoning Board’s decision and deny the variance application, as specified below.

PROCEDURAL HISTORY

Shentel filed an application on May 17, 2014 with the Palmyra Zoning Hearing Board (hereinafter “Board”) seeking a use variance to place a wireless communication facility on property owned by the Borough of Palmyra. In addition, Shentel sought multiple dimensional variances.

The initial hearing on Shentel’s application for zoning relief was scheduled for June 16, 2014, but was continued at Shentel’s request. After several continuances, a hearing on Shentel’s application for zoning relief was held on October 20, 2014, where evidence was presented by Shentel, the Borough of Palmyra and Charles Emerick, Director of Community Development for Derry Township. At the October 20, 2014 hearing, Shentel orally amended its application for zoning relief to request additional variances from Section 13.02A, Section 13.02B and Section 10.04A(3).

A hearing was subsequently held on November 17, 2014, thereby denying the variance. However, the Board failed to issue a written decision, denying the application, within 45 days. As a result from the Board’s failure to issue the written decision, Shentel posted a “Notice of Deemed Approval” on the property and published a copy of the Notice of Deemed Approval in the Lebanon Daily News for two consecutive weeks, pursuant to the Pennsylvania Municipalities Planning Code; 53 P.S. § 10908(9). Appellants timely filed an appeal to the Notice of Deemed Approval.

In a deemed approval of a zoning application, the findings of the zoning board are a nullity and on appeal the trial court must render its own findings of fact and conclusions of law. DeSantis v. Zoning Hearing Bd. of the City of Aliquippa, 53 A.3d 959, 962 (Pa. Cmwlth. 2012). Accordingly, the matter is ripe for this Court’s de novo review.

FINDINGS OF FACT

Shentel is the proposed lessee of the premises, and the variance applicant, for a monopole wireless telecommunication tower seeking to be located in Palmyra Borough, Lebanon County.

The real property that is subject to the variance application is owned by Palmyra Borough and located at 843 West Main Street, Palmyra, PA 17078 (hereinafter “Property”).

The Property was acquired by Palmyra Borough (hereinafter “Borough”), as required by the Pennsylvania Department of Transportation (hereinafter “PennDOT”) as part of a road widening project that was adjacent to the Property. Notes of Testimony from October 20, 2014 at 89-91 (N.T. __).

The Borough classified the Property as an uneconomic remnant and PennDOT approved of that classification. (N.T. 20-23, 89-91).

The Property is located in the Auto-Oriented/Commercial C-2 Zoning District, which does not allow wireless communication/cell towers. (N.T. 4, 17).

At the October 20, 2014 hearing Shentel presented the testimony of Deborah Baker, Site Acquisition Consultant. (N.T. 13). She testified as follows:

The proposed monopole tower will be 120 feet tall. (N.T. 15-16).

The proposed tower will be self-supporting and will not have any guide wires. (N.T. 16)

The proposed tower will be a gray, galvanized finish. (N.T. 16)

At the base of the monopole would be a 10 foot by 16 foot concrete pad that will hold equipment cabinets. (N.T. 16)

The proposed monopole tower and concrete pad would be surrounded by a 50 foot by 50 foot fenced area. (N.T. 16)

The total proposed leased area is 60 feet by 60 feet. ((N.T. 16)

The proposed access to the site is from North Avenue. (N.T. 16)

The deed to the property describes the property as an uneconomic remnant from an eminent domain proceeding. (N.T. 21-22).

The Federal Aviation Administration (hereinafter “FAA”) reviewed the application, approving the plan for the monopole tower and the FAA will not require that the monopole tower be lit. (N.T. 23-24).

Shentel notified the existing airports located within a 5 mile radius of the proposed monopole tower. (N.T. 25).

The State Historic Preservation Office opined that the proposed tower would not have an effect on any historical resources. (N.T. 25-26).

There are at least six towers closely located to Palmyra Borough. (N.T. 36).

Shentel next presented the testimony of Gary Vaughan, an expert in wireless communication and radio frequency coverage. (N.T. 41-43).

In order to provide the required radiofrequency coverage to the coverage objective, the proposed tower is required to be located on the Property. (N.T. 44-52).

The proposed monopole tower height of 120 feet is the minimum height necessary to provide the radiofrequency coverage that Shentel desires to produce. (N.T. 53).

Shentel presented testimony of W. Jeffery Nagorny, a civil engineer with Advantage engineers. (N.T. 61).

The proposed monopole tower would be 42 feet from the northwestern property line and 40 feet 7 inches from the right-of-way on Lingle Ave. (N.T. 68,79).

The nearest lease line is 27 feet and the nearest easement line is 29 feet, 3 inches. (N.T. 79).

The proposed monopole tower is designed for Shentel’s use and three other collocating carriers. (N.T. 71).

The proposed monopole tower will be designed to fall within a radius of 40 feet from the proposed location in the event of a catastrophic collapse. (N.T. 69-73).

Roger Powl, the Palmyra Borough Manager, testified on behalf of Palmyra Borough. (N.T. 88).

Palmyra Borough was required by PennDOT to acquire the property for a road widening project by filing a Declaration of Taking. (N.T. 89-90).

Palmyra Borough did not take part in planning the road widening project. (N.T. 89).

PennDOT approved the determination that the property, acquired through eminent domain, was to be classified as an uneconomic remnant. (N.T. 90-91).

Palmyra Borough would receive $12,000 a year from Shentel for use of the property, along with an escalatory clause and with additional payments for collocations. (N.T. 97)

Finally, Charles Emerick, Director of Community Development for Derry Township, testified in opposition to the variance application. (N.T. 106).

Uses that are permitted in the Auto-Oriented District must be non-objectionable in terms of emission, visual impact, nor have an adverse effect on adjacent areas. (N.T. 108).

Wireless communication towers are permitted as a special exception in the Manufacturing District. (N.T. 108).

Section 11 of the Palmyra Borough Zoning Ordinance governing wireless communications seeks to protect residential areas and land uses from potential adverse impacts of towers. (N.T. 109).

The zoning ordinance requires that there be a setback of one and one-half times the tower height to dwellings. (N.T. 109).

The dimensional variance for height relief is approximately 243 percent. (N.T. 115).

On November 17, 2014, the Board rendered a final oral decision on the requested zoning relief, thereby denying the application for relief by a two to one vote. (November 17, 2014, N.T. 6.)

DISCUSSION

In the matter sub judice, there was substantial testimony regarding the unique nature of the property and the difficulties Palmyra Borough faces in finding a conforming use for the property located in the C2 Auto Oriented Commercial District. Palmyra Borough acquired the property through an eminent domain taking. Palmyra Borough classified the property at the time of acquisition as an uneconomic remnant from the taking, which was determined and approved by PennDOT.

Shentel has proposed to lease the subject property from Palmyra Borough at an annual rate of $12,000, along with an escalatory clause and additional payment for collocation. However, to place the proposed monopole tower on the property, Shentel has had to apply for a use variance and a dimensional variance because Palmyra Borough only allows wireless communication/cell towers in the Manufacturing District. The Municipal Planning Code requires a variance applicant to show the following:

(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 conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.

(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 zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

(3) That such unnecessary hardship has not been created by the appellant.

(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

53 P.S. § 10910.2(a).

The requested variance must not adversely impact the health, safety, and welfare of the general public or authorize more than the minimum variance necessary to afford relief. Carman v. Zoning Bd. of Adjustment of City of Philadelphia, 638 A.2d 365, 369 (Pa. Cmwlth. 1994). The party seeking a variance has the burden of proving that an unnecessary hardship will result if the variance is denied and that the proposed use will not be contrary to public interest. Carman, 638 A.2d at 369. The burden upon the landowner is a heavy burden to bear. Polonsky v. Zoning Hearing Bd. of Mount Lebanon, 590 A.2d 1388, 1390 (Pa. Cmwlth. 1991).

An applicant for a use variance shows an unnecessary hardship by evidence that, (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property has no value for any purpose permitted by the zoning ordinance. Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998). A hardship must be unique to the property at issue, not a hardship arising from the impact of the zoning regulations on the entire district. Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014).

The hardship must truly be an unnecessary one and not simply a “mere” hardship. Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 290 (Pa. 1996). Personal or economic hardship does not warrant the granting of a variance. Rinck v. Zoning Bd. of Adjustment, 339 A.2d 190, 192 (Pa. Cmwlth. 1975). Furthermore, showing that a lot can be used in a more profitable fashion is insufficient; there must be no permitted use to which the land can feasibly be put before a use variance is granted. Township of East Caln v. Zoning Hearing Bd. of East Caln Tp., 915 A.2d 1249, 1253-54 (Pa. Cmwlth. 2007).

In reviewing the presented testimony along with the applicable law, it is apparent that Shentel cannot meet the requirements needed to grant its application for a use variance, as well as the requested dimensional variances, for the following reasons.

CONCLUSIONS OF LAW

There is not an unnecessary hardship created by unique physical circumstances of the property. 53 P.S. § 10910.2(a)(1).

There was substantial testimony about the unique character, size and location of the property and the difficulty Palmyra Borough faces in utilizing the property. (N.T. 92-93). The property is located at the busy intersection of two state routes, irregular in shape, quite narrow, steep sloping topography on part of the lot, and has a storm water channel. (N.T. 92-93).

However, the Commonwealth Court stated that where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied. Society Hill Civic Ass’n. v. Philadelphia Zoning Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth. 2012). The asserted hardship is being caused by Palmyra Borough’s desire to put this piece of property, classified as an uneconomic remnant, to a profitable use for the Borough. Shentel has proven nothing more than the plain fact that the driving force behind this variance application is pure economic gain. As such, this financial hardship that will arise if the variance is not granted is not supported by the law.

From the presented testimony, it has not be shown that due to the physical circumstances of the property there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. 53 P.S. § 10910.2(a)(2). At the October 20, 2014 hearing, the following testimony was elicited by Roger Powl when questioned by the Borough Solicitor:

Q: Now, the second criteria in the Municipalities Planning Code is that because of such physical circumstances or conditions there’s no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance. Do you believe that’s correct?

A: Yes.

Q: Do you believe that the variances requested, particularly, the use variance for the monopole is necessary to enable some use of this property?

A: Yes, we do.

(N.T. 93-94). This testimony, superficial at best, does not indicate that there is no possibility that the property can be developed in conformity with the zoning ordinance.

The applicant did not create the unnecessary hardship. 53 P.S. § 10910.2(a)(3). As indicated, PennDOT required Palmyra Borough to file eminent domain proceedings as part of PennDOT’s plan to widen the intersection. This property, the uneconomic remnant of the required taking, was thereafter owned by Palmyra Borough upon completion of the road widening project, leaving the property in its current state.

The variance will alter the essential character of the neighborhood if it were authorized. Wireless communication/cell phone towers are only allowed in the Manufacturing District and even then, only as a special exception. Section 11.02(k)(4) of the Palmyra Borough Zoning Ordinance. The following are the listed objectives in the ordinance for determining appropriate placement of wireless communication towers in the manufacturing district:

Protect residential areas and land uses from potential adverse impacts of towers and antennas.

Encourage the location of towers in nonresidential area.

…

Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal.

Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques.

Section 11.02(k)(4)(b). The proposed tower is located in the Auto-Oriented Commercial District, which is intended:

To accommodate commercial activity within the borough. Since these enterprises are for the most part dependent on traffic generated by a major thoroughfare, these uses are grouped together to facilitate shopping via automobile. The requirements…are designed to promote safe and expedient conveyance of the resulting high traffic volumes.

Section 10.01 of the Zoning Ordinance. Additionally, the property is surrounded by residential properties, which is in direct contravention to the intended placement of wireless communication towers in Palmyra Borough, seeking to place these towers away from residential properties.

Furthermore, the Auto-Oriented Commercial district has a maximum height restriction of 35 feet for structures in the district. Section 10.04 of the Zoning Ordinance. Here, Shentel is seeking a dimensional variance to place a 120 foot monopole tower in this district that has a height limit of 35 feet, which amounts to 234% relief from the limitations in this district. The requested relief is so far beyond what is permitted in the district that the height of the tower would significantly alter the essential character of the neighborhood if it were authorized.

The requested variance, if it were to be authorized, would be the minimum that will afford relief. Shentel’s radiofrequency engineer provided substantial testimony that the proposed height of the tower (120 feet) is the minimum that would afford relief because if it were any lower, it would not provide the coverage that they are seeking to provide. (N.T. 53).

We will enter an Order consistent with the foregoing.

1) The zoning code from which the variances were sought has been replaced with an updated version, adopted in March 2015.

2) The Pennsylvania Municipalities Planning Code (hereinafter “MPC”) states in relevant part; The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the board or hearing officer…Where the board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the board to meet or render a decision as hereinabove provided, the board shall give public notice of said decision within ten days from the last day it could have met to render a decision in the same manner as provided in subsection (1) of this section. If the board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.

53 P.S. § 10908(9)

3) A supplemental hearing was not held on this matter as the parties stipulated to the record.

4) Article 11 Section 11.02(k)(4) is solely dedicated to the conditions that must be met to allow a wireless communication tower as a special exception, in the manufacturing district.

5) Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10910.2.