SBA Towers IX, LLC v. Unity Twp. ZHB -- Appeal of: Bellincin, McIntosh, Sobota and Schmauch , 179 A.3d 652 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
SBA Towers IX, LLC and Pittsburgh :
SMSA Limited Partnership d/b/a :
Verizon Wireless :
:
v. : No. 1884 C.D. 2016
: Argued: November 14, 2017
Unity Township Zoning Hearing Board :
and Dr. Chris and Jill Bellicini; :
James and Megan McIntosh; Edward :
and Kathy Sobota; and Christopher and :
Lynn Schmauch and Westmoreland :
County Airport Authority :
:
Appeal of: Dr. Chris and Jill Bellicini, :
James and Megan McIntosh, :
Edward and Kathy Sobota, :
and Christopher and Lynn Schmauch :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION BY JUDGE BROBSON FILED: February 16, 2018
Appellants Dr. Chris and Jill Bellicini, James and Megan McIntosh,
Edward and Kathy Sobota, and Christopher and Lynn Schmauch (Appellants) appeal
from an order of the Court of Common Pleas of Westmoreland County (Common
Pleas), dated October 27, 2016. Common Pleas reversed the decision of the Unity
Township Zoning Hearing Board (ZHB), thereby sustaining SBA Towers IX, LLC’s
(SBA Towers) appeal of the denial of SBA Towers’ and Pittsburgh SMSA Limited
Partnership d/b/a Verizon Wireless’ (Verizon) application for a special exception
(Application). For the reasons discussed below, we reverse.
I. BACKGROUND
Columbus Home Association (Columbus) is the owner of an 8.9-acre
parcel of land (Property) located in Unity Township (Township), Westmoreland
County. SBA Towers entered into an Option and Land Lease Agreement (Option
Agreement) with Columbus for the lease of a 100-foot by 100-foot section of the
Property for the construction, support, and operation of a wireless communications
tower facility. The Property is located in an R-1 zoning district. The Unity
Township Zoning Ordinance (Ordinance) permits communications towers in an
R-1 zoning district by special exception, provided that the applicant establishes that
the criteria set forth in Section 118-701(L) of the Ordinance have been met.
On January 19, 2016, SBA Towers and Verizon filed their Application with the
ZHB, seeking a special exception to construct a 150-foot tall monopole
communications tower on the Property. The ZHB conducted a public hearing on the
Application on February 23, 2016.
At the hearing, SBA Towers and Verizon presented the testimony of
Shreyas Patel (Patel), a radio frequency engineer for Verizon. (Reproduced Record
(R.R.) at 114A-15A.) Patel testified that he prepared a radio frequency propagation
map to demonstrate to the ZHB the areas within the Township where Verizon has
minimal or no coverage. (Id. at 115A-16A.) He explained that there is a substantial
gap in Verizon’s coverage within the Township because the three existing network
sites located in the area are lacking coverage and are not providing the necessary
signal strength. (Id. at 116A-17A, 149A.) Patel testified that Verizon intends to
place its antennas on the proposed communications tower at a height of 145 feet,
which will provide good signal coverage and will fill the gap in Verizon’s coverage.
(Id. at 117A-18A). He testified further that if the antennas were lowered to 95 feet,
2
Verizon’s coverage would be significantly reduced or lost and, therefore,
construction of the communications tower at a height of 150 feet is the minimum
height necessary to fill Verizon’s gap in coverage. (Id. at 118A-19A.) While he
admitted that a 95-foot tower would provide Verizon with better coverage, Patel
indicated that at that height the coverage gap would only be improved by 50 percent.
(Id. at 127A-28A.)
Patel testified further that Verizon was unable to locate any suitable
collocation sites for its antennas within a one-mile radius of the Property.
(Id. at 120A.) He explained that Verizon considered a nearby water tower, but he
indicated that the water tower was too short, was at a lower elevation, and would not
have filled the gap in coverage. (Id. at 120A-21A, 153A-54A.) He also explained
that he did not consider the suitability of four radio towers located near the Property
because they were not submitted to him. (Id. at 122A, 134A.) Patel did indicate,
however, that during his visits to the Property, he did not see a radio tower because
“[i]t was really far away.” (Id. at 146A.) Patel explained further that he did not
know whether there were other communications towers located near the Property,
but he indicated that no such communications towers had been presented to him for
consideration. (Id. at 123A-24A.) He also stated that increasing the height of
Verizon’s antennas at the three existing network sites in the area would not eliminate
Verizon’s gap in coverage because Verizon has a problem with both signal strength
and traffic and is trying to offload traffic from those sites. (Id. at 144A-45A, 149A.)
Patel stated further that it is also not possible to add additional antennas to those
three existing sites because there is a technology limitation. (Id. at 145A.) Patel
acknowledged further that the letter from Jim Rickard (Rickard), Manager-RF
System Design for Verizon, to the Township dated December 18, 2015, was
3
submitted to the ZHB for the purpose of satisfying Section 118-701(L)(2) of the
Ordinance, governing human exposure to electromagnetic radiation. (Id. at 135A.)
In regard thereto, Patel explained that Verizon is always in compliance with Federal
Communications Commission (FCC) standards nationwide. (Id. at 135A-36A.)
SBA Towers and Verizon also presented the testimony of Tim Stark
(Stark) of Wireless Resources, Inc. (Id. at 159A.) Stark testified that SBA Towers
and Verizon consulted with him to find a suitable location for a communications
tower that would increase Verizon’s coverage in the Township. (Id.) Stark
explained that SBA Towers and Verizon required him to present potential
collocation sites to Verizon and then Verizon would decide whether those potential
sites would provide the necessary coverage to fill its coverage gap. (Id. at 162A.)
Stark stated that the search ring provided to him by Verizon was “tight” and “close
to around Palmer Drive, a little more south.” (Id.) He explained that Verizon had
previously considered the Latrobe High School as a potential collocation site for its
antennas, but the ZHB denied its request to utilize that location. (Id. at 159A-60A.)
Stark explained further that a hotel was also considered as a potential collocation
site, but Verizon eliminated it because it was too short, too far west, and too close to
existing coverage. (Id. at 160A.) He stated that a nearby water tower was also
explored and rejected because Verizon deemed it too short. (Id.) He also stated that
the surrounding radio towers were briefly discussed but determined to be too far
south for a potential collocation site. (Id.) Stark explained that if the hotel, water
tower, or radio towers would have been a sufficient collocation site to fill Verizon’s
coverage gap, Verizon would have submitted an application to the ZHB for such
site. (Id. at 160A-61A.) Stark also testified that he was confident that there were no
4
other communications towers or competing structures within a quarter mile of the
Property. (Id. at 164A.)
SBA Towers and Verizon also submitted into evidence: (1) a letter
from the Federal Aviation Administration (FAA), which indicated that the FAA had
conducted an aeronautical study and determined that the proposed communications
tower did “not exceed obstruction standards and would not be a hazard to air
navigation;” and (2) a statement from the Pennsylvania Bureau of Aviation (PBA),
indicating that the PBA had no objection “provided the FAA does not object, or
determine the structure to be a hazard to air navigation.” (Id. at 88A, 92A.)
In opposition to SBA Towers’ and Verizon’s Application, the
Westmoreland County Airport Authority (Airport Authority) presented the
testimony of Patrick Carney (Carney), a pilot who flies airplanes and helicopters out
of the Arnold Palmer Airport. (Id. at 182A.) Carney stated that he believed that the
proposed communications tower presented a safety concern to helicopter pilots,
because helicopters fly in and out of the airport at all angles at a level 500 feet below
airplanes, and the helicopter landing zone is between the runway and the location of
the proposed communications tower. (Id. at 182A-83A.)
The Airport Authority also presented the testimony of Gabriel E.
Monzo (Monzo), its executive director. (Id. at 189A.) Monzo testified that he has
been employed by the Airport Authority for 33 years and has been its executive
director for 8 years. (Id.) In his position, he is responsible for the day-to-day service
of all air carriers, which he stated includes protecting the “approach areas and areas
around the airport from obstructions.” (Id. at 189A-90A.) Monzo explained that the
Property is located in the airport overlay district in a zone classified as
“part 77 surfaces” and any construction “over 150 feet high is a penetration to
5
part 77 surface” and, therefore, must be looked at very carefully. (Id. at 190A-91A.)
Monzo testified that even though the FAA approved the location of the proposed
communications tower and determined that there was no hazard to air navigation, he
continues to have safety concerns. (Id. at 193A, 196A.) He explained that pilots
often get into precarious situations due to weather and their experience level, and he
believed that the proposed communications tower would pose as an additional
hazard to these pilots. (Id. at 193A-94A.) Monzo stated that he is concerned not
only for the individuals flying the helicopters but also those individuals on the
ground that could be affected if a helicopter were to hit the proposed
communications tower. (Id. at 200A-01A.) Monzo also explained that Life Flight
and the STAT Medi-Evac utilize the rotary field, located less than 1,000 feet from
the location of the proposed communications tower, and he believes that the
proposed communications tower will create an issue “with helicopter traffic trying
to move in that area.” (Id. at 194A-95A.)1
On April 26, 2016, the ZHB rendered its decision, denying SBA
Towers’ and Verizon’s Application. In so doing, the ZHB made the following
relevant findings of fact:
13. The [Ordinance], in Section [118-701(L)(1),2]
requires that proof be provided that Verizon is licensed by
the [FCC] to operate a communications tower; however,
the applicant’s Exhibit 1E indicates that the licensing has
been issued to “Cellco Partnership,” not to Verizon
1
Members of the public, including some of the Appellants, presented narrative testimony
before the ZHB.
2
Section 118-701(L)(1) of the Ordinance provides: “The applicant must provide proof it
is licensed by the [FCC] to operate a communications tower and, if applicable, communications
antennas.”
6
Wireless. Verizon contended that Cellco Partnership is the
parent company of [SBA Towers]; however, Verizon’s
exhibit did not verify the same.
14. Section [118-701(L)(2)] of the [Ordinance3]
requires that Verizon comply with all standards
established by the [FCC] governing human exposure to
electromagnetic radiation. Other than Verizon’s
Exhibit 1D, which is a letter from [Rickard] of Verizon
Wireless to [the Township], indicating that Verizon has
complied with all FCC guidelines, there was no testimony
offered by Verizon to describe the applicable standards
and how the standards apply to this particular use with
respect to electromagnetic radiation. Further, the
Intervenors’ testimony raised health and safety concerns
for the residents in the area with respect to the effects of
electromagnetic radiation.
15. The [Ordinance], Section [118-701(L)(3)4]
demands that Verizon comply with all applicable [FAA]
requirements and regulations, particularly since this site is
located in an airport overlay district in close proximity to
the Arnold Palmer Regional Airport. The applicant’s
Exhibit 1F is a letter from the [FAA].
16. Notwithstanding the [FAA] approval, the
Arnold Palmer Regional Airport Authority, represented by
its Executive Director, [Monzo], expressed concerns to the
[ZHB] about airplane and helicopter safety and submitted
to the [ZHB] what was marked as Airport Authority
Exhibit #1, an elevation map, depicting the approximate
location of the proposed [communications] tower and a
letter dated February 20, 2016 from [Monzo] to the
[Township] Supervisors, said letter being marked as
Airport Authority Exhibit #2, expressing concerns to the
Supervisors about the close proximity of a 150 foot tall
3
Section 118-701(L)(2) of the Ordinance provides: “The applicant must demonstrate that
the proposed communications tower and any communications antennas proposed to be mounted
thereon, comply with all applicable standards established by the [FCC] governing human exposure
to electromagnetic radiation.”
4
Section 118-701(L)(3) of the Ordinance provides: “Communications towers shall comply
with all applicable [FAA], [PBA] and applicable airport zoning regulations.”
7
[communications] tower to the airport and its potential
detrimental effect to aviation safety in the region.
17. Testimony was offered by [Carney], who is a
pilot who lives in [the Township] and flies out of the
Arnold Palmer Regional Airport, both in single wing
aircraft and helicopters, expressing his concerns,
particularly with regard to the operation of helicopters and
the type of flight path that they take in and out of the
airport.
18. The [Ordinance] also requires, in
Section [118-701(L)(4),5] that the applicant makes a good
faith effort to potentially co-locate its tower on other
existing communications towers, structures or buildings in
the area and that the applicant has made a reasonable
search of the area within one quarter mile of the proposed
[communications] tower site concerning the same.
Testimony was taken from Verizon’s witness, [Stark], of
Wireless, Inc., which was a company contracted by
Verizon to help with the co-location issue. [Stark]
indicated that he had surveyed the area and was aware that
Verizon had previously attempted to place antenna[s] on
the Latrobe Area High School, but was denied that
permission by the [ZHB]. He also suggested that he
looked at other sites in close proximity to the proposed
site, that being a water tower, a hotel, and radio towers.
[Stark], however, admitted that although he did in fact
identify sites for Verizon and communicated them to
Verizon, it was Verizon not Stark who would ultimately
have done the analysis of the potential coverage by these
sites and the evaluation necessary to determine whether
co-location or location on an existing structure was
possible.
5
Section 118-701(L)(4) of the Ordinance provides, in relevant part:
Any applicant proposing construction of a new communications tower shall
demonstrate that a good faith effort has been made to obtain permission to mount
the communications antennas on an existing building, structure or communications
tower. A good faith effort shall require that all owners of potentially suitable
structures within a radius of 1/4 mile of the proposed communications tower site be
contacted.
8
19. [Patel], Verizon’s radio frequency engineer,
indicated that he had examined sites more than one-fourth
of a mile from the proposed site owned by [Columbus];
however, even though [Patel] described what has been
labeled as Verizon’s Exhibit 1G, network coverage maps
and propagation studies, it remained unclear as to exactly
what actual investigation [Patel] had done with respect to
sites that included an existing water tower and radio
towers in the area.
20. Intervenor, Christopher Schmauch, testified
and indicated to the [ZHB] through his Exhibit A, that he
had examined Verizon’s coverage areas through Verizon’s
own internet website and had concluded from that
information that Verizon’s existing coverage area does not
show a gap in coverage in this particular area of the
Township. Through Mr. Schmauch, the Intervenors also
introduced their Exhibit B, a satellite map indicating the
location of the proposed [communications] tower and the
Intervenors’ Exhibit C, which is a petition signed by
numerous property owners in the immediate area opposed
to the erection of the [communications] tower and
indicating the detrimental effect it would have on the
residents.
(ZHB Decision at 4-7 (footnotes added).) Based on those findings of fact, the ZHB
made the following relevant conclusions of law:
3. Although Verizon submitted exhibits,
documentation and testimony that has satisfied many of
the requirements of Section [118-701(L)], in particular
those requirements relating to the site plan, the fencing and
screening of the [P]roperty, the access to the [P]roperty,
the insurance requirements, construction details, support
wires, etc., the [ZHB] concludes that the remaining
requirements of the Ordinance, including
Section [118-701(L) (1), (2), (3), (4) and (8)], have not
been established by Verizon to the [ZHB’s] satisfaction.
4. One of the key elements for the [ZHB’s]
consideration with respect to granting a privilege to
construct a communications tower in an R-1 zone, is the
evidence to support the contention that a 150 foot
[communications] tower would be the minimum height
9
necessary to fill the gap in coverage that Verizon asserts
(Section [118-701(L)(8)]), and the “good faith effort” that
Verizon would have made to evaluate other structures,
buildings or other communications towers in an effort to
co-locate antenna[s] or a [communications] tower at
another site. The [ZHB] concludes that [Patel’s]
testimony concerning co-location, coupled with [Stark’s]
testimony as to his role in identifying alternative sites, not
evaluating them, give the [ZHB] reason to reject Verizon’s
testimony on its “good faith effort” in this regard. The
[ZHB] concludes that a good faith effort was not made
with respect to the requirements of Section [118-
701(L)(4)] and that evidence was not forthcoming
detailing how alternative sites were evaluated within a one
quarter mile radius of the proposed site, or within a one
mile radius of the proposed site, as [Patel], Verizon’s
expert, was suggesting. [Patel’s] testimony was
inconsistent and somewhat confusing on this issue.
5. Although the [ZHB] understands the position of
the [FAA] with regard to the proposed location of the
communications tower, the [ZHB] also finds that the
testimony offered by [Monzo], the Executive Director of
the Arnold Palmer Regional Airport [sic], was credible
and gave the [ZHB] concern about the safety of not only
single wing aircraft and helicopters and their occupants
accessing the airport, but of course, a concern about public
safety on the ground in the immediate vicinity with respect
to this air traffic. The [ZHB] recognizes [Monzo’s]
expertise in airport safety and control in the [Township]
area because of his lengthy tenure of service to the airport
and the Township and his well respected standing in the
local community with respect to all aspects of airport
operations.
6. That the [ZHB] evaluated Verizon’s Exhibit 1D,
concerning the standards of the FCC regarding human
exposure to electromagnetic radiation from
communications towers; however, the [ZHB] concludes
that Exhibit 1D does not provide the detail or supporting
data which would satisfy the [ZHB] as to the health and
safety of its citizens concerning exposure to
electromagnetic radiation, all of which is required by
Section [118-701(L)(2)] of the Ordinance and referenced
10
in Section [118-701(L)(4)(d)] of the Ordinance in
co-location situations.
7. Further, the [ZHB] has examined Section 107 of
the Pennsylvania Municipalities Planning Code [(MPC)6]
concerning standing in matters of zoning applications. As
contended by the Intervenors, the [ZHB] agrees that
Verizon in this instance is not a landowner as defined in
the [MPC,7] that being a “legal or beneficial owner or
owners of land, including the holder of an option or
contract to purchase . . . , a lessee, if he is authorized under
the lease to exercise the rights of the landowner, or other
person having a proprietary interest in the land.” With
respect to the [ZHB’s] examination of Verizon’s
Exhibit 1C, the [ZHB] concludes that the landowner
herein is [Columbus], not Verizon or [SBA Towers] and
that the [ZHB] agrees with Intervenors that Verizon would
have had a right to exercise an option to lease the premises;
however, there was no testimony establishing that Verizon
had actually leased the premises. The [ZHB] concludes
that Verizon, in the capacity of a proposed leaseholder, is
not a proper party and therefore does not have standing
before the [ZHB.]
6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10107. Section 107 of the MPC
provides, in relevant part:
(a) The following words and phrases when used in this act shall have the
meanings given to them in this subsection unless the context clearly indicates
otherwise:
....
“Applicant,” a landowner or developer, as hereinafter defined, who has filed
an application for development including his heirs, successors and assigns.
....
“Landowner,” the legal or beneficial owner or owners of land including the
holder of an option or contract to purchase (whether or not such option or contract
is subject to any condition), a lessee if he is authorized under the lease to exercise
the rights of the landowner, or other person having a proprietary interest in land.
7
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
11
8. The [ZHB] is charged as a quasi judicial body
with evaluating the credibility of all witnesses and
rendering its findings and conclusions based on its
evaluation of the testimony and exhibits presented to it.
With respect to that evaluation, the [ZHB] has concluded
that Verizon has failed to adequately satisfy the burden
upon it to secure a special exception in this R-1 zoning
district.
(ZHB Decision at 7-10 (footnotes added) (omission in original).)
SBA Towers appealed the ZHB’s decision to Common Pleas, and
Common Pleas permitted Appellants and Verizon to intervene.8 Thereafter,
Common Pleas, sua sponte, scheduled a hearing on October 21, 2016, “for the
purpose of giving the parties an opportunity to present testimony and/or any other
additional evidence establishing the relationship between ‘Cellco Partnership,’
‘Verizon Wireless,’ and ‘Pittsburgh SMSA Limited Partnership d/b/a Verizon
Wireless.’” (Certified Record (C.R.), Common Pleas Order dated Sept. 12, 2016.)
In so doing, Common Pleas noted that it had reviewed the record and briefs and
found
that the record [was] insufficient with respect to the issue
concerning the [ZHB’s] Finding of Fact 13, which note[d]
that the [FCC] license is issued to “Cellco Partnership,”
rather than to “Verizon Wireless,” and as relating to
Section [118-701(L)(1)] of the Ordinance, which requires
that proof be provided that Verizon Wireless is licensed by
the [FCC] to operate a communications tower.
(C.R., Common Pleas Order dated Sept. 12, 2016.) By opinion and order dated
October 27, 2016, Common Pleas reversed the ZHB’s decision, thereby sustaining
SBA Towers’ appeal. In so doing, Common Pleas made numerous conclusions
8
Common Pleas also permitted the Airport Authority to intervene. Unity Township
intervened by filing a notice of intervention.
12
relevant to this appeal. First, with respect to the FCC licensure requirement as set
forth in Section 118-701(L)(1) of the Ordinance, Common Pleas explained:
Cellco Partnership is the parent company of Verizon
Wireless, and Cellco is more commonly and popularly
referred to as Verizon Wireless. As such, Verizon
Wireless, under the Cellco name, is licensed by the FCC.
(Common Pleas Op. at 6.) Second, with respect to the requirement that SBA Towers
and Verizon demonstrate that they made a good faith effort to identify other
structures as potential collocation sites as set forth in Section 118-701(L)(4) of the
Ordinance, Common Pleas stated:
[T]here is not substantial evidence in the record to support
the [ZHB’s] finding that [the] applicant did not make a
good faith effort to identify other structures as possible
collocation sites within a quarter mile radius of the
proposed site. To the contrary, [SBA Towers’] witnesses
conducted a comprehensive review of the area and the
possibilities available, thereby demonstrating their good
faith effort at finding the best available location. We find
that the [ZHB] abused its discretion when it found
otherwise.
(Common Pleas Op. at 7.) Third, with respect to the requirement that the proposed
communications tower comply with FAA, PBA, and other applicable airport zoning
regulations as set forth in Section 118-701(L)(3) of the Ordinance, Common Pleas
indicated:
[T]here is not substantial evidence in the record to support
the [ZHB’s] finding that the testimony of [Monzo],
Executive Director of the Arnold Palmer Regional
Airport, concerning the potential safety hazards posed by
the proposed tower deserved more weight than the
evaluation done and conclusion reached by the [FAA].
We find that the [ZHB] abused its discretion when it found
otherwise.
(Common Pleas Op. at 9.) Fourth, with respect to the requirement that SBA Towers
and Verizon demonstrate that the proposed communications tower complies with
13
FCC regulations relating to human exposure to electromagnetic radiation as set forth
in Section 118-701(L)(2) of the Ordinance, Common Pleas explained:
[B]ased upon the evidence presented that establishes the
[a]pplicant’s FCC compliance, we find that substantial
evidence supports a finding that human exposure to
electromagnetic radiation from the proposed
telecommunications tower is not a health and safety
concern in this case. For the [ZHB] to find otherwise was
an abuse of discretion.
(Common Pleas Op. at 10.) Lastly, with respect to the issue of whether SBA Towers
had standing to file the Application with the ZHB, Common Pleas stated:
[I]n light of [the Option Agreement] and the controlling
case law, we find that substantial evidence supports a
finding that [SBA Towers] has standing as an applicant
under the MPC to seek this special exception. For the
[ZHB] to find otherwise was an abuse of discretion.
(Common Pleas Op. at 12.)9 Appellants appealed Common Pleas’ decision to this
Court.
II. ISSUES ON APPEAL
On appeal,10 Appellants present the following issues for our
consideration:11 (1) whether SBA Towers had standing to file the Application with
9
In its opinion, Common Pleas did not specifically address the ZHB’s determination that
SBA Towers and Verizon failed to demonstrate compliance with the minimum height requirement
set forth in Section 118-701(L)(8) of the Ordinance. Common Pleas did, however, reverse the
ZHB’s decision, and, therefore, it is implied that Common Pleas concluded that SBA Towers and
Verizon had demonstrated compliance with that requirement.
10
“Where a trial court takes no additional evidence in an appeal from a decision of the
[ZHB], this Court is limited to considering whether the [ZHB] erred as a matter of law or abused
its discretion.” German v. Zoning Bd. of Adjustment, 41 A.3d 947, 949 n.1 (Pa. Cmwlth. 2012).
“A [ZHB] abuses its discretion if its findings are not supported by substantial evidence.” Arter v.
Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1226 n.9 (Pa. Cmwlth.), appeal denied,
934 A.2d 75 (Pa. 2007).
11
The ZHB and the Township adopted and joined in Appellants’ brief.
14
the ZHB; (2) whether Common Pleas committed an error of law by permitting
Verizon to intervene in the statutory appeal; (3) whether Common Pleas committed
an error of law and/or abused its discretion by conducting an evidentiary hearing,
sua sponte, to clarify the relationship between SBA Towers and/or Verizon and
Cellco Partnership, the entity identified on the FCC license; (4) whether Common
Pleas erred in concluding that the ZHB improperly determined that SBA Towers and
Verizon failed to demonstrate a good faith effort to locate other structures as possible
collocation sites within a quarter mile of the Property; (5) whether Common Pleas
erred in concluding that the ZHB improperly determined that SBA Towers and
Verizon failed to provide evidence that SBA Towers and Verizon were licensed by
the FCC to operate communications towers and antennas; (6) whether Common
Pleas erred in concluding that the ZHB improperly determined that SBA Towers and
Verizon failed to demonstrate that the proposed communications tower and
communications antennas complied with all applicable standards established by the
FCC governing human exposure to electromagnetic radiation; (7) whether Common
Pleas erred in concluding that the ZHB improperly determined that SBA Towers and
Verizon failed to demonstrate that a 150-foot communications tower is the minimum
height necessary to serve Verizon’s need; and (8) whether Common Pleas erred by
reweighing the evidence before the ZHB related to airport safety.
III. DISCUSSION
A. Standing
Appellants argue that SBA Towers lacked standing to file the
Application with the ZHB. More specifically, Appellants argue that SBA Towers is
not a “landowner,” as that term is defined by Section 107 of the MPC. Appellants
argue further that the Option Agreement does not confer a present interest in the
15
Property to SBA Towers. In response, SBA Towers and Verizon argue that SBA
Towers had standing to file the Application because pursuant to Tioga Preservation
Group v. Tioga County Planning Commission, 970 A.2d 1200 (Pa. Cmwlth.), appeal
denied, 982 A.2d 1229 (Pa. 2009), the holder of an option contract is an applicant
under Section 107 of the MPC if such holder is authorized to exercise the rights of
the landowner. SBA Towers and Verizon argue further that the Option Agreement
“explicitly grants [SBA Towers] permission to exercise the rights of the landowner,”
because SBA Towers is authorized to obtain the necessary governmental approvals
for the construction of the proposed communications tower. (SBA Towers’ and
Verizon’s Br. at 16-17.)
Section 107 of the MPC defines “applicant” as “a landowner or
developer . . . who has filed an application for development” and a “landowner” as
“the legal or beneficial owner or owners of land including the holder of an option or
contract to purchase[,] . . . a lessee if he is authorized under the lease to exercise the
rights of the landowner, or other person having a proprietary interest in land.” In
Tioga Preservation Group, this Court considered, inter alia, whether a lease option
agreement conferred a property interest sufficient to make the holder of the option
an applicant/landowner under the MPC. Tioga Preservation Group,
970 A.2d at 1203-04. The lease option agreement at issue in Tioga Preservation
Group granted the holder of the option “an exclusive easement during the option
period, allowing [it] to enter the property to perform various studies to determine the
suitability of the property for the [p]roject.” Id. at 1204. Based on the language of
the lease option agreement, this Court held that the holder of the option was a proper
applicant under the MPC. Id. In so doing, this Court stated that “[i]t is clear from
the terms of the [lease o]ption [a]greement that the owners of the subject properties
16
have granted [the holder of the option] an interest beyond that of a ‘proposed
leaseholder’ and have conferred upon [the holder of the option] a proprietary interest
in the subject properties.” Id.
While the Option Agreement in this case does not specifically provide
SBA Towers with an “exclusive easement,” the Option Agreement does grant SBA
Towers “the right to enter the [Property] to conduct tests and studies . . . to determine
the suitability of the [Property] for [SBA Towers’] intended use.” (R.R. at 70A.)
The Option Agreement also requires SBA Towers to “obtain any necessary
governmental licenses or authorizations required for the construction and use of” the
proposed communications tower. (Id. at 71A.) This language makes it clear that
SBA Towers is more than just a potential leaseholder; the Option Agreement
specifically authorizes SBA Towers to exercise Columbus’s rights as the owner of
the Property. For these reasons, SBA Towers is a landowner and a proper applicant
under Section 107 of the MPC and, thus, had standing to file the Application with
the ZHB. Common Pleas, therefore, properly concluded that the ZHB abused its
discretion in finding that SBA Towers lacked standing to file the Application with
the ZHB.
B. Verizon’s Intervention
Appellants argue that Common Pleas committed an error of law by
permitting Verizon to intervene in the statutory appeal. More specifically,
Appellants argue that Verizon could not intervene as a matter of course under
17
Section 1004-A of the MPC12 because Verizon is not an owner or tenant of the
Property or a party to the Option Agreement. Appellants argue further that Verizon
should also not have been permitted to intervene under Pennsylvania Rule of Civil
Procedure No. 232713 because (a) Common Pleas did not conduct a hearing to
determine whether Verizon could establish the criteria necessary to intervene as
required by Pennsylvania Rule of Civil Procedure No. 2329,14 and (b) Verizon did
not allege facts sufficient to establish a basis to intervene in its petition. In response,
SBA Towers and Verizon concede that Verizon is not an owner or tenant of the
12
Section 1004-A of the MPC provides:
Within the 30 days first following the filing of a land use appeal, if the
appeal is from a board or agency of a municipality, the municipality and any owner
or tenant of property directly involved in the action appealed from may intervene
as of course by filing a notice of intervention, accompanied by proof of service of
the same, upon each appellant or each appellant’s counsel of record. All other
intervention shall be governed by the Pennsylvania Rules of Civil Procedure.
13
Pennsylvania Rule of Civil Procedure No. 2327 provides:
At any time during the pendency of an action, a person not a party thereto
shall be permitted to intervene therein, subject to these rules if
(1) the entry of judgment in such action or the satisfaction of such judgment
will impose any liability upon such person to indemnify in whole or in part the party
against whom judgment may be entered; or
(2) such person is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could
have been joined therein; or
(4) the determination of such action may affect any legally enforceable
interest of such person whether or not such person may be bound by a judgment in
the action.
14
Pennsylvania Rule of Civil Procedure No. 2329 provides, in relevant part:
Upon the filing of the petition [to intervene] and after hearing, of which due
notice shall be given to all parties, the court, if the allegations of the petition have
been established and are found to be sufficient, shall enter an order allowing
intervention[.]
18
Property, but argue that Common Pleas properly permitted Verizon to intervene
under Pennsylvania Rule of Civil Procedure No. 2327. More specifically, SBA
Towers and Verizon argue that it is “indisputable that Verizon is situated to be
adversely affected by the disposition of the appeal” because SBA Towers’
communications tower “is designed specifically to fill an existing gap in Verizon’s
wireless network.” (SBA Towers’ and Verizon’s Br. at 18.)
While Common Pleas did not hold a hearing to specifically consider
whether Verizon should be permitted to intervene as required by Pennsylvania Rule
of Civil Procedure No. 2329, the record provides an adequate basis upon which
Common Pleas could exercise its discretion to permit Verizon to intervene in the
matter. See Sunny Farms, Ltd. v. N. Codorus Twp., 474 A.2d 56, 62 (Pa. Cmwlth.
1984) (“Although a hearing would have been preferable, . . . the record here provided
an adequate basis upon which the court exercised its discretion to allow the
intervention.”). The record in this case establishes that SBA Towers intends to
construct the communications tower on the Property specifically for Verizon so that
Verizon can collocate its antennas to fill an existing gap in its coverage. Thus,
Verizon was “situated as to be adversely affected” by Common Pleas’ decision
regarding whether to sustain SBA Towers’ appeal and permit SBA Towers to
construct the proposed communications tower on the Property. See Pa. R.C.P.
No. 2327(2). For these reasons, Common Pleas did not commit an error of law by
permitting Verizon to intervene in the statutory appeal.
C. Sua Sponte Hearing
Appellants contend that Common Pleas committed an error of law
and/or abused its discretion by conducting an evidentiary hearing, sua sponte, to
clarify the relationship between SBA Towers and/or Verizon and Cellco Partnership,
19
the entity identified on the FCC license.15 More specifically, Appellants argue that
Common Pleas violated Section 1005-A of the MPC16 by scheduling a hearing when
no party filed a motion to present additional evidence. Appellants argue further that
Common Pleas should have decided the appeal based solely on the underlying record
and should not have “created a new record to clean up or ‘clarify’ the deficient record
created by SBA [Towers] and Verizon before the ZHB.” (Appellants’ Br. at 23, 26.)
In response, SBA Towers and Verizon argue that Common Pleas did not commit an
error of law or abuse its discretion because Common Pleas has discretion to decide
whether to request additional evidence. SBA Towers and Verizon argue further that
Common Pleas did not err because it scheduled the “sua sponte hearing to clarify
Verizon’s ownership interest in the various entities” and only “requested
non-substantive testimony relating to the business relationship between Verizon and
its entities.” (SBA Towers’ and Verizon’s Br. at 21.)
15
We note that Appellants objected at the outset of the hearing, contending that Common
Pleas could not sua sponte conduct an evidentiary hearing. Common Pleas overruled the objection,
asserting it was merely seeking clarification. (R.R. at 325A-27A.)
16
Section 1005-A of the MPC provides:
If, upon motion, it is shown that proper consideration of the land use appeal
requires the presentation of additional evidence, a judge of the court may hold a
hearing to receive additional evidence, may remand the case to the body, agency or
officer whose decision or order has been brought up for review, or may refer the
case to a referee to receive additional evidence . . . . If the record below includes
findings of fact made by the governing body, board or agency whose decision or
action is brought up for review and the court does not take additional evidence or
appoint a referee to take additional evidence, the findings of the governing body,
board or agency shall not be disturbed by the court if supported by substantial
evidence. If the record does not include findings of fact or if additional evidence
is taken by the court or by a referee, the court shall make its own findings of fact
based on the record below as supplemented by the additional evidence, if any.
20
Section 1005-A of the MPC permits the trial court to hold a hearing to
take additional evidence upon motion. While it is within the trial court’s discretion
to decide whether to take any additional evidence, such discretion is exercised only
after one party files a motion. See, e.g., Wilson v. Plumstead Twp. Zoning Hearing
Bd., 894 A.2d 845 (Pa. Cmwlth. 2006), aff’d, 936 A.2d 1061 (Pa. 2007); Caln Nether
Co., L.P. v. Bd. of Supervisors of Thornbury Twp., 840 A.2d 484 (Pa. Cmwlth.),
appeal denied, 856 A.2d 835 (Pa. 2004). In this case, Common Pleas scheduled and
held a hearing sua sponte to consider additional evidence regarding the relationship
between SBA Towers and/or Verizon and Cellco Partnership. Because none of the
parties filed a motion to present additional evidence on this issue, Common Pleas
committed an error of law by scheduling and holding the hearing. We can, however,
mitigate the error on appeal by disregarding the evidence presented at the hearing.
D. Collocation
Appellants argue that Common Pleas erred in concluding that the ZHB
improperly determined that SBA Towers and Verizon failed to demonstrate a good
faith effort to identify other structures as possible collocation sites within a quarter
mile of the Property. More specifically, Appellants argue that Common Pleas
substituted its judgment for that of the ZHB and erroneously determined that existing
radio towers were beyond a quarter-mile17 radius of the Property because “the
undisputed evidence before the ZHB showed that the radio tower structures are
located within 1,000 feet of the proposed tower site.” (Appellants’ Br. at 27
(footnote omitted).) Appellants argue further that SBA Towers and Verizon cannot
establish that they considered the radio towers in “good faith” as required by
Section 118-701(L)(4) of the Ordinance, because the undisputed testimony
17
A quarter mile equals 1,320 feet.
21
demonstrates that SBA Towers and Verizon did not contact the owners of the radio
towers or otherwise evaluate the suitability of collocating the antennas on the radio
towers. Appellants also argue that Common Pleas erroneously placed the burden of
proof on Appellants when Common Pleas concluded that Appellants did not present
any reliable evidence from technical professionals to support their suggestions that
certain alternative sites were suitable to fill Verizon’s coverage gap. In response,
SBA Towers and Verizon counter that Common Pleas correctly determined that the
ZHB abused its discretion as to its findings regarding SBA Towers’ and Verizon’s
efforts to identify alternate collocation structures. More specifically, SBA Towers
and Verizon argue that the water tower, hotel, and radio towers are located outside
the quarter-mile radius of the Property and “were considered and dismissed as
possible collocation opportunities given the distance from the gap in coverage and
overall height of the structures.” (SBA Towers’ and Verizon’s Br. at 22.)
Section 118-701(L)(4) of the Ordinance required SBA Towers and
Verizon to demonstrate that they made a good faith effort to obtain permission to
mount their antennas on an existing building, structure, or communications tower
located within a quarter mile radius of the Property. While Appellants argue that the
undisputed evidence before the ZHB demonstrated that certain radio tower structures
were located within 1,000 feet of the Property, Appellants have not cited any
evidence in the record to support their statement. The citations to the record
provided by Appellants in their brief as “indisputable proof” that the radio towers
are located within 1,000 feet of the Property are merely cross-examination questions
framed by Appellants’ attorney and the Airport Authority’s attorney and directed to
SBA Towers’ and Verizon’s witnesses. No witness stated on the record that existing
radio towers were, in fact, located within 1,000 feet of the Property. For these
22
reasons, we agree with Common Pleas that the ZHB improperly determined that
SBA Towers and Verizon failed to demonstrate a good faith effort to identify other
structures as possible collocation sites within a quarter mile of the Property.
E. FCC License
Appellants argue that Common Pleas erred in concluding that the ZHB
improperly determined that SBA Towers and Verizon failed to provide evidence that
SBA Towers and Verizon were licensed by the FCC to operate communications
towers and antennas. More specifically, Appellants argue that the evidence
presented to the ZHB to show that SBA Towers and Verizon are licensed by the
FCC consisted of “copies of [four] FCC ‘Radio Station Authorizations’ issued to
‘Cellco Partnership,’” and that, despite the insistence of SBA Towers’ and Verizon’s
attorney that Cellco Partnership is the parent company of SBA Towers and Verizon,
the evidence submitted to the ZHB did not substantiate his representation.
(Appellants’ Br. at 31.) In response, SBA Towers and Verizon argue that Common
Pleas did not err because Verizon provided evidence that it is licensed by the FCC.18
Section 118-701(L)(1) of the Ordinance required SBA Towers and
Verizon to provide proof that the applicant was licensed by the FCC to operate a
communications tower and communications antennas. The documents attached to
the Application indicate that the FCC issued licenses to Cellco Partnership, not SBA
Towers or Verizon. While SBA Towers’ and Verizon’s attorney stated on the record
before the ZHB that Cellco Partnership is the parent company and Verizon is the
affiliate, there was no evidence or testimony entered into evidence to establish this
18
Both parties also advanced arguments relative to the additional evidence that Common
Pleas received at the time of the sua sponte hearing. Based on our conclusion above that Common
Pleas committed an error of law by taking additional evidence relative to the relationship between
SBA Towers and/or Verizon and Cellco Partnership, we must ignore all evidence presented at the
time of the sua sponte hearing.
23
relationship. In addition, the ZHB determined that SBA Towers and Verizon were
not proper applicants under Section 107 of the MPC and, therefore, did not have
standing to file the Application. While SBA Towers appealed the ZHB’s decision,
the ZHB’s decision with respect to Verizon went unchallenged.19 Thus, the question
is not whether Verizon is licensed by the FCC, but whether SBA Towers, the
applicant, is licensed by the FCC. There is no evidence of record to even suggest
that SBA Towers may be licensed by the FCC. For these reasons, the ZHB properly
determined that SBA Towers and Verizon failed to provide evidence that SBA
Towers and Verizon were licensed by the FCC to operate communications towers
and antennas.
F. FCC Standards
Appellants argue that Common Pleas erred in concluding that the ZHB
improperly determined that SBA Towers and Verizon failed to demonstrate that the
proposed communications tower and communications antennas complied with all
applicable standards established by the FCC governing human exposure to
electromagnetic radiation. More specifically, Appellants argue that the only
evidence submitted into the record to establish that the proposed communications
tower will comply with FCC standards governing human exposure to
electromagnetic radiation is a hearsay letter from Rickard to the Township.
Appellants argue further that such letter does not “demonstrate how the proposed
[communications] tower and antenna[s] will comply with the applicable FCC
standards” and “offers nothing more than a bald statement that [the proposed
19
Even though the validity of Section 118-701(L)(1) of the Ordinance is not before us, we
note that the ZHB’s unchallenged conclusion that Verizon was not a proper applicant under
Section 107 of the MPC raises substantial questions regarding how and under what circumstances
an applicant could comply with Section 118-701(L)(1) of the Ordinance.
24
communications tower] will be compliant with FCC [g]uidelines.” (Appellants’ Br.
at 34.) In response, SBA Towers and Verizon argue that Common Pleas correctly
determined that the proposed communications tower and antennas would comply
with FCC standards because Rickard’s letter certified that the proposed site would
be compliant with all FCC regulations and Patel testified that Verizon is in
compliance with all FCC regulations. SBA Towers and Verizon argue further that
the neighboring “residents’ generalized and unsubstantiated fears cannot be
permitted to preempt Verizon’s compliance with FCC regulations.” (SBA Towers’
and Verizon’s Br. at 26.)
Section 118-701(L)(2) of the Ordinance required SBA Towers and
Verizon to demonstrate that the proposed communications tower and any
communications antennas proposed to be mounted thereon complied with all
applicable FCC standards relating to human exposure to electromagnetic radiation.
The only evidence submitted into the record to establish that the proposed
communications tower will comply with FCC standards governing human exposure
to electromagnetic radiation is Rickard’s letter, which provides that Verizon
“performed a radio frequency (RF) compliance pre-construction evaluation” and that
based on such evaluation the proposed communications tower will be in compliance
with FCC guidelines. (R.R. at 81A.) The ZHB concluded that Rickard’s letter was
too conclusory and did not provide sufficient detail or data to satisfy the ZHB as to
the health and safety of its citizens concerning exposure to electromagnetic radiation.
This was not an error.
This Court’s recent unreported decision in TowerCo 2013 LLC v. Cecil
Township Board of Supervisors (Pa. Cmwlth., No. 239 C.D. 2017, filed
25
December 8, 2017),20 is persuasive in this matter. In TowerCo, the applicant sought
to construct a communications tower for Verizon in a residential zoning district,
where communications towers were permitted as a conditional use. TowerCo, slip.
op. at 1-2. In order to obtain conditional use approval, the township’s ordinance
required the applicant to demonstrate, inter alia, that the proposed communications
tower complied with the FCC’s safety standards and electromagnetic field limits.
Id. at 8. To satisfy this requirement, the applicant submitted a letter from Rickard,
which letter contained language similar to the letter submitted to the ZHB in this
case. Id. The board of supervisors in TowerCo determined that the letter was
insufficient to meet the applicant’s burden of proof under the township’s ordinance.
Id. at 9. On appeal, this Court concluded that the letter was “conclusory and not
verified or supported by any other documentation[, and, therefore, t]he [b]oard did
not err in determining that [the applicant’s] evidence of compliance with FCC
standards was insufficient.” Id.
Here, like in TowerCo, Rickard’s letter is conclusory and not supported
by other documentation. While we find it unlikely that Verizon would risk its FCC
licenses by constructing and/or operating a communications tower that would expose
the public to harmful levels of electromagnetic radiation, SBA Towers and Verizon
could have easily satisfied the ZHB’s concerns by providing the ZHB with the actual
written evaluation. We note, however, that it is the FCC, not the ZHB, that
determines whether the proposed communications tower will comply with FCC
standards. Therefore, while the ZHB may require that the actual written evaluation
be entered into evidence, it may not require any extraordinary level of detail
20
Pursuant to Commonwealth Court Internal Operating Procedure 414(a), “an unreported
panel decision of this [C]ourt issued after January 15, 2008, [may be cited] for its persuasive value,
but not as binding precedent.”
26
regarding how the proposed communications tower will comply with FCC
standards. For these reasons, Common Pleas erred in concluding that the ZHB
improperly determined that SBA Towers and Verizon failed to demonstrate that the
proposed communications tower and communications antennas complied with all
applicable standards established by the FCC governing human exposure to
electromagnetic radiation.
G. Minimum Height Necessary
Appellants argue that Common Pleas erred in concluding that the ZHB
improperly determined that SBA Towers and Verizon failed to demonstrate that a
150-foot communications tower is the minimum height necessary to serve Verizon’s
need. More specifically, Appellants argue that there is substantial evidence to
support the ZHB’s finding that SBA Towers and Verizon failed to establish that
a 150-foot communications tower is the minimum height necessary to fill Verizon’s
coverage gap because Patel testified that a 95-foot tower “will improve [Verizon’s]
coverage in the target area” and a map from Verizon’s website “showed that there is
no gap in coverage in this particular area of the Township.” (Appellants’ Br. at 35.)
In response, SBA Towers and Verizon argue that Common Pleas did not err by
determining that a 150-foot communications tower is the minimum height necessary
because “Patel provided uncontroverted expert testimony that collocating antennas
at the 95-foot mark on the proposed [communications] tower significantly
diminishes Verizon’s ability to fill the existing gap in coverage by approximately
[50] percent” and that “collocating Verizon’s antennas at a centerline height
of 145 feet on the proposed 150-foot communications tower is the minimum height
necessary to fill the existing gap in coverage.” (SBA Towers’ and Verizon’s
Br. at 27.)
27
Section 118-701(L)(8) of the Ordinance21 required SBA Towers and
Verizon to demonstrate that the proposed communications tower would be the
minimum height necessary to perform its function. The stated function of the
proposed communications tower in this matter is to fill an existing gap in Verizon’s
wireless coverage.22 Patel testified that placing the antenna at 145 feet on a 150-foot
communications tower was the minimum height necessary to fill Verizon’s gap in
coverage and that placing the antennas at the 95-foot mark would diminish Verizon’s
ability to fill the gap in coverage by 50 percent. This testimony establishes that a
150-foot communications tower is the minimum height necessary to fill the existing
gap in Verizon’s coverage in the Township. As a result, we agree with Common
Pleas that the ZHB improperly determined that SBA Towers and Verizon failed to
demonstrate that a 150-foot communications tower is the minimum height necessary
to serve Verizon’s need.
H. Airport Safety
Appellants argue that Common Pleas erred by reweighing the evidence
before the ZHB related to airport safety. More specifically, Appellants take issue
with Common Pleas’ conclusion that there was not substantial evidence in the record
21
Section 118-701(L)(8) of the Ordinance provides: “The applicant shall demonstrate that
the proposed height of the communications tower is the minimum height necessary to perform its
function.”
22
Appellants seem to suggest that there is a question regarding whether Verizon even has
an existing gap in its coverage within the Township, because “the ZHB was persuaded by a map
from Verizon’s own website [that] showed that there is no gap in coverage in this particular area
of the Township.” (Appellants’ Br. at 35.) Appellants, however, mischaracterize the weight given
by the ZHB to this evidence. The ZHB simply stated that Appellant Christopher Schmauch
“testified and indicated to the [ZHB] through his Exhibit A, that he had examined Verizon’s
coverage areas through Verizon’s own internet website and had concluded from that information
that Verizon’s existing coverage area does not show a gap in coverage in this particular area of the
Township.” (ZHB Decision at 6.) The ZHB did not make a specific finding or conclusion that
Verizon failed to demonstrate an existing gap in its coverage in the Township.
28
to support the ZHB’s finding that Monzo’s and Carney’s testimony deserved more
weight than the evaluation performed and conclusion reached by the FAA regarding
airport safety. Appellants argue further that Monzo’s and Carney’s credible
testimony provides substantial evidence that the proposed communications tower
will have an adverse impact on public health, safety, and welfare. In response, SBA
Towers and Verizon argue that Common Pleas did not err in determining that the
ZHB had abused its discretion by concluding that SBA Towers and Verizon had
failed to comply with Section 118-701(L)(3) of the Ordinance. More specifically,
SBA Towers and Verizon argue that “the FAA preempts relevant safety regulations
and establishes a complete safety standard for air transportation which are not
subject to variation among jurisdictions” and they provided the ZHB with a copy of
the FAA approval for the proposed communications tower. (SBA Towers’ and
Verizon’s Br. at 29 (emphasis in original).)
Appellants incorrectly frame their argument in the context of adverse
impact on public health, safety, and welfare. The ZHB relied on Monzo’s and
Carney’s testimony not to conclude that the proposed communications tower would
have an adverse impact on public health, safety, and welfare, but rather to conclude
that SBA Towers and Verizon failed to demonstrate that the proposed
communications tower complies with all applicable FAA and PBA regulations as
required by Section 118-701(L)(3) of the Ordinance. In order to comply with
Section 118-701(L)(3) of the Ordinance, SBA Towers and Verizon submitted into
evidence a letter from the FAA indicating that the FAA had conducted an
aeronautical study and determined that the proposed communications tower did “not
exceed obstruction standards and would not be a hazard to air navigation.”
(R.R. at 88A.) SBA Towers and Verizon also submitted into evidence a statement
29
from the PBA, indicating that the PBA had no objection to the proposed
communications tower “provided the FAA does not object, or determine the
structure to be a hazard to air navigation.” (Id. at 92A.) The analysis stops here, as
the FAA and PBA letters establish that the proposed communications tower
complies with their regulations as required by Section 118-701(L)(3) of the
Ordinance. We, therefore, agree with Common Pleas that the ZHB abused its
discretion by determining that SBA Towers and Verizon failed to comply with
Section 118-701(L)(3) of the Ordinance. Moreover, Common Pleas did not reweigh
the evidence before the ZHB related to airport safety.
IV. CONCLUSION
Based on the foregoing, Common Pleas’ order is reversed.
P. KEVIN BROBSON, Judge
30
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
SBA Towers IX, LLC and Pittsburgh :
SMSA Limited Partnership d/b/a :
Verizon Wireless :
:
v. : No. 1884 C.D. 2016
:
Unity Township Zoning Hearing Board :
and Dr. Chris and Jill Bellicini; :
James and Megan McIntosh; Edward :
and Kathy Sobota; and Christopher and :
Lynn Schmauch and Westmoreland :
County Airport Authority :
:
Appeal of: Dr. Chris and Jill Bellicini, :
James and Megan McIntosh, :
Edward and Kathy Sobota, :
and Christopher and Lynn Schmauch :
ORDER
AND NOW, this 16th day of February, 2018, the order of the Court of
Common Pleas of Westmoreland County is hereby REVERSED.
P. KEVIN BROBSON, Judge