NORTHEAST PENNSYLVANIA SMSA LIMITED PARTNERSHIP v. THE SCOTT TOWNSHIP ZONING HEARING BOARD (Commonwealth Court of Pennsylvania, April 18, 2011).
The Township zoning ordinance required that a communications tower, such as the proposed tower, have setbacks equal to one-and-a-half times the communications tower's height. Applicant planned the tower to be 190 feet tall with an eight-foot lightning rod—198 feet tall in total—which would require setbacks of 297 feet. In its variance application, Applicant requested a variance to allow the following setbacks: "South-145'; West-47'; East-178'; North-55'." The Township Board initially approved the variance, but the Board discovered that the neighboring landowners had not received notice of the hearing and convened a second hearing. After testimony by the Applicant and several opposing neighbors, the Board held that Applicant met four of the five requirements for the variance, but found that the “variance requested, if authorized, will alter the essential character of the district, will substantially or permanently impair the appropriate use or development of adjacent properties, and will be detrimental to the public welfare, all of which is evident from the testimony of adjoining landowners...”.
Applicant appealed the Board's decision to the trial court, which reversed the Board's denial of Applicant's variance, and the neighbors appealed to the appellate court. The trial court held, and Applicant argued, that the neighbors did not adduce sufficient evidence upon which the Board could make its finding. However, citing to Pennsylvania law, the Court stated it is the party seeking a variance who bears the burden of proving that the requirements for a grant of the variance are met, and the Court stated that Applicant did not offer evidence to show that neighbors' property values would not be impacted or that their ability to develop their properties in the future would not be negatively impacted. Moreover, the Court stated that the neighbors presented testimony supporting the Board's holding that the variance would impair the use and development of neighbors' properties or be detrimental to the public welfare. For these reasons, the Court held that the trial court erred when it held that the Board erroneously denied Applicant's request for the variance.
The Court also explained the law related to the neighbors’ right to intervene. Because the Board denied Applicant's request for a variance, the neighbors were not aggrieved by the Board's decision and did not have standing to appeal it at the trial court. Because they disagreed with the findings of fact and conclusions of law made by the Board, the neighbors' only course of action was to intervene, rather than appeal, and attempt to point out the Board's errors.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com