Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allegheny Tower Associates, LLC, :

Appellant :

:

v. : No. 2085 C.D. 2015

: Argued: December 12, 2016

City of Scranton Zoning Hearing :

Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE SIMPSON FILED: January 10, 2017

Allegheny Tower Associates, LLC (Applicant) asks whether the Court

of Common Pleas of Lackawanna County (trial court) erred in affirming a decision

of the City of Scranton Zoning Hearing Board (ZHB), which, based on a split

decision, technically denied Applicant’s request for a special exception to construct

a monopole (commercial communications) tower. Applicant asserts the ZHB erred

in denying its special exception request where it presented sufficient evidence to

show its entitlement to special exception approval under the City of Scranton

Zoning Ordinance (zoning ordinance). Upon review, we reverse.

I. Background

In May 2015, Applicant filed an application with the ZHB seeking a

special exception to construct a monopole communications tower at 2630 Winfield

Avenue in Scranton (property). The property is located in a Light Industrial

District (I-L).

The ZHB held a hearing on the application. Attorney Timothy

Siegfried appeared with his client, Joseph Fitzsimmons of Allegheny Tower

Associates, Inc., on Applicant’s behalf. Fitzsimmons proposed to construct a 140-

foot high monopole communications tower on the property, which would replace

an existing 120-foot high guyed tower. Fitzsimmons testified: the property is

mostly surrounded by commercial or industrial uses; the proposed use would

comply with the zoning ordinance’s setback provisions; Applicant would provide

proper screening; and, the proposed use would not disturb the neighborhood.

Further, the proposed tower would not be lighted, and it would comply with all

Federal Communications Commission regulations.

James Walsh testified in opposition to Applicant’s proposed

communications tower. He explained the existing guyed tower is no more than

two feet in diameter, and the new tower would be approximately eight feet in

diameter. Daryl Palmer also testified in opposition to Applicant’s proposed tower,

stating it would be unsightly to residential neighbors (in a near-by zone) and

dangerous if it fell on an adjoining gas station.

At the conclusion of the hearing, the four-member ZHB reached a

split decision, resulting in a deemed denial of Applicant’s special exception

application.1

1

See, e.g., Giant Food Stores, Inc. v. Zoning Hearing Bd. of Whitehall Twp., 501 A.2d

353 (Pa. Cmwlth. 1985).

2

The ZHB subsequently issued a written decision in which it explained

that under Section 306(B) of the zoning ordinance, a commercial communications

tower is permitted by special exception in an I-L zoning district. Further, Section

119(C) of the zoning ordinance states that the ZHB shall approve any proposed

special exception if it finds adequate evidence exists that the proposed use will

satisfy: (1) all standards listed in Section 118(C)(4) of the zoning ordinance; (2) the

specific standards for the proposed use in Sections 402 and 403 of the zoning

ordinance; and, (3) all other applicable zoning ordinance requirements.

The ZHB explained that Section 118(C)(4) addresses issues relating to

traffic, safety, storm water management and impact on the neighborhood. In

particular, Section 118(C)(4)(e) states the proposed use “will not significantly

negatively affect the desirable character of an existing residential neighborhood.”

Id.2

2

In addition, Section 402(13) of the zoning ordinance states:

13. Communications Antennae, Commercial.

a. Any such antenna that is attached to an existing business

building or a nonresidential buildings [sic] of more than 5 stories

shall not be regulated by this Section, and instead is permitted by

right without additional regulations under this Ordinance. See

requirements of the City Building Code.

b. A freestanding antenna shall be setback a minimum distance

equal to half its height from all lot lines and existing street right-of-

way lines.

c. The base of a freestanding antennae shall be surrounded by a

secure fence with a minimum height of 8 feet.

d. Any freestanding antennae higher than 50 feet that is within 100

feet of a public street or dwelling shall be buffered along that street

(Footnote continued on next page…)

3

Ultimately, by a two-to-two vote, the ZHB technically denied

Applicant’s special exception application because the proposed tower did not meet

the standard set forth in Section 118(C)(4)(e) of the zoning ordinance, that the

proposed use will not significantly negatively affect the desirable character of an

existing residential neighborhood. Applicant appealed to the trial court.

Without taking additional evidence, the trial court issued an order

affirming the ZHB. Applicant appealed to this Court, and the trial court directed it

to file a concise statement of the errors complained of on appeal, which it did.

In a subsequently filed opinion pursuant to Pa. R.A.P. 1925(a), the

trial court concluded the ZHB’s determination that Applicant did not prove its

proposed use would not significantly negatively affect the desirable character of an

existing residential neighborhood was supported by substantial evidence. To that

end, the ZHB credited the testimony of the objectors (Palmer and Walsh) that the

proposed tower would have a substantial negative impact on the existing

residential neighborhood over Fitzsimmons’ contrary testimony.

The trial court also rejected Applicant’s argument that the trial court

erred in upholding the ZHB’s decision based on Conclusion of Law No. 15, which

states: “By a vote of 2-2, the [a]pplication for a [s]pecial [e]xception was denied

finding the proposed tower would not meet the standards of [Section 118

(continued…)

or lot line (except at the driveway crossing) by evergreen screening

or preserved woods meeting the requirements of Section 803.

4

(C)(4)(e)].” ZHB Op., 6/15/15, Concl. of Law No. 15. In response, the trial court

explained the hearing transcript clearly showed the ZHB voted two-to-two. See

ZHB Hr’g, 6/10/15, at 54-55. The trial court noted that a tie vote is deemed a

denial under applicable law. The trial court further stated that, in its findings of

fact and conclusions of law, the ZHB adequately detailed its reasons for denying

the requested special exception. This matter is now before us for disposition.

II. Discussion

A. Contentions

On appeal,3 Applicant begins by pointing out that a special exception

applicant has the duty to present evidence and the burden of persuading the ZHB

that its proposed use meets the ordinance’s objective requirements. MarkWest

Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 102 A.3d 549

(Pa. Cmwlth. 2014), appeal denied, 113 A.3d 281 (Pa. 2015) (citing Morrell v.

Zoning Hearing Bd. of Borough of Shrewsbury, 17 A.3d 972, 975 (Pa. Cmwlth.

2011); Greaton Props. v. Lower Merion Twp., 796 A.2d 1038, 1045-46 (Pa.

Cmwlth. 2002)). Here, Applicant contends, it satisfied this burden by presenting

evidence that its proposed tower would comply with all of the zoning ordinance’s

requirements. Once an applicant meets this burden, “a presumption arises that the

use is consistent with the health, safety and general welfare of the community.” Id.

at 553. The burden then shifts to the objectors to present evidence and persuade

the ZHB that the proposed use will have a generally detrimental effect. Id.

3

Because the parties presented no additional evidence after the ZHB’s decision, our

review is limited to determining whether the ZHB committed an abuse of discretion or an error

of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).

5

Here, Applicant maintains, the objectors did not satisfy their burden of

showing the proposed tower would be detrimental to public health, safety and

welfare. Applicant argues that, in attempting to satisfy this burden, the objectors

produced no sufficient, credible evidence; instead, they relied solely on speculation

and unfounded personal opinions. Because Applicant proved its proposed tower

would comply with all zoning ordinance requirements, and the objectors did not

show the tower would have a detrimental effect, Applicant asserts, the ZHB should

have approved the special exception application.

Applicant argues the ZHB’s findings and conclusions state, without

explanation, that the proposed tower would not meet the standards of Section

118(C)(4)(e) of the zoning ordinance, which requires that a proposed use “not

significantly negatively affect the desirable character of an existing residential

neighborhood.” Applicant contends the ZHB’s findings and conclusions offer no

explanation or analysis as to how the ZHB reached this conclusion. Further,

according to Applicant, there is nothing in the transcript to support any such

determination.

Applicant asserts that, pursuant to Section 306(B) of the zoning

ordinance, a commercial communications tower, like the proposed tower, is

permitted by special exception in the I-L zoning district. Section 119(C) of the

zoning ordinance states that the ZHB shall approve any proposed special exception

if it finds adequate evidence that the proposed use will meet: (1) all standards listed

in 118(C)(4) of the zoning ordinance; (2) specific standards for the proposed use

listed in Sections 402 and 403 of the zoning ordinance; and, (3) all other applicable

6

zoning ordinance requirements. Applicant notes Section 118(C)(4) of the zoning

ordinance discusses additional criteria that must be met prior to approval of special

exception requests. Applicant then details the record evidence that it contends

shows its proposed tower satisfies all of these criteria.

Applicant also maintains the record lacks substantial evidence that its

proposed tower would substantially affect the health, safety and welfare of the

community. Applicant argues that at the ZHB hearing, after Applicant presented

evidence to establish the proposed tower met the zoning ordinance’s objective

requirements, two objectors (Walsh and Palmer) testified and expressed their

concerns about the proposed tower. Reproduced Record (R.R.) at 215a-226a.

Notwithstanding the testimony of these objectors, Applicant contends,

the law is clear that objectors to a special exception application cannot meet their

burden by merely speculating as to possible harm, but instead must show a “high

degree of probability that the proposed use will substantially affect the health,

safety and welfare of the community.” MarkWest, 102 A.3d at 570 (citation

omitted). “More specifically, objectors’ evidence must show a high probability

that the use will generate adverse impacts not normally generated by this type of

use ….” Id. (citation omitted). Here, Applicant argues, the objectors did not meet

this burden.

The ZHB4 responds that the only issue to be decided by it, as the trier

of fact, was whether or not the proposed communications tower would

4

Only the ZHB filed a brief in opposition to Applicant’s appeal to this Court.

7

“significantly negatively affect the desirable character of the existing residential

neighborhood,” under 118(C)(4)(e) of the zoning ordinance.

The ZHB notes it heard testimony from Applicant, who stated no

negative affect on the neighborhood would occur, and from two neighbors, Walsh

and Palmer, who testified the proposed tower would negatively affect the

neighborhood. Walsh testified he owns a car lot adjacent to the proposed tower.

He stated the existing tower is a guyed tower like an old ham radio tower. The

new tower would be four to five times wider and 140 feet in height. He explained

that comparing the old tower to the proposed tower is like comparing a toothpick

to a telephone pole. For his part, Palmer explained he lives across the street from

the proposed tower. Like Walsh, Palmer worried that if the tower fell, it could fall

on the adjacent gas station. Palmer also stated the proposed tower would detract

from the neighborhood because he would be able to see it from his front lawn.

The ZHB maintains that, as trier of fact, it heard this testimony, and it

was certainly within its purview to make the decision it did, i.e., that the new

communications tower would negatively affect the residents in the neighborhood.

The ZHB argues it did not abuse its discretion in arriving at that conclusion, and it

applied the correct law (Section118(C)(4)(e) of the zoning ordinance). Thus, it did

not commit an error at law.

In sum, the ZHB contends, based on the testimony presented, the trial

court did not err in finding the ZHB did not abuse its discretion or commit an error

of law in denying the special exception request. A reasonable person could

conclude the testimony of Walsh and Palmer was credible and the proposed tower

8

would significantly negatively affect the desirable character of existing residential

neighbors. Thus, the ZHB asserts, this Court should dismiss Applicant’s appeal.

2. Analysis

A special exception is neither special nor an exception, but a use

expressly contemplated that evidences a legislative decision that the particular type

of use is consistent with the zoning plan and presumptively consistent with the

health, safety and welfare of the community. Greth Dev. Grp., Inc. v. Zoning

Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth. 2007). Further, as

Robert S. Ryan explains:

Zoning boards often hear protestants argue that an

applicant for a special exception should be required to

observe the law as set forth in the zoning ordinance.

That argument is appropriate in an application for a

variance, but not in a case involving a special exception.

The applicant for an exception is following the zoning

ordinance. His application is one envisioned by the

ordinance and, if the standards established by the

ordinance are met, his use is one permitted by its express

terms.

Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE, §5.1.1 (2001)

(emphasis in original).

An applicant for a special exception has both the duty of presenting

evidence and the burden of persuading the ZHB that its proposed use satisfies the

zoning ordinance’s objective requirements for the grant of a special exception.

Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002). Once

the applicant meets its burden of proof and persuasion, a presumption arises that it

9

is consistent with the health, safety and general welfare of the community. Id. The

burden then normally shifts to the objectors to present evidence and persuade the

ZHB that the proposed use will have a generally detrimental effect on health,

safety and welfare. Id. The evidence presented by the objectors must show a high

probability that the use will generate adverse impacts not normally generated by

this type of use, and that these impacts will pose a substantial threat to the health

and safety of the community. Id.

In Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth.

1980), this Court outlined the rules concerning “initial evidence presentation duty

(duty) and persuasion burden (burden) in special exception cases” as follows:

Specific requirements, e. g., categorical definition of the

special exception as a use type or other matter, and

objective standards governing such matter as a special

exception and generally:

The applicant has both the duty and the burden.

General detrimental effect, e. g., to the health, safety and

welfare of the neighborhood:

Objectors have both the duty and the burden; the

ordinance terms can place the burden on the applicant but

cannot shift the duty.

General policy concern, e. g., as to harmony with the

spirit, intent or purpose of the ordinance:

Objectors have both the duty and the burden; the

ordinance terms cannot place the burden on the applicant

or shift the duty to the applicant.

Id. at 912-13 (underlined emphasis added).

10

Here, the ZHB denied Applicant’s special exception application based

solely on Section 118(C)(4)(e), which states:

The [ZHB] shall approve any proposed [special

exception] if [it] find[s] adequate evidence that the

proposed use will ….

****

4. Comply with all of the following standards:

****

e. Neighborhood. Will not significantly

negatively affect the desirable character of an

existing residential neighborhood.

Id. Although not entirely clear from the ZHB’s decision in support of a deemed

denial, it appears the ZHB based its determination on the following two factual

findings:

6. James Walsh spoke against the tower. He stated the

present [guyed] tower is no more than 2 feet in diameter

and the new tower would be about 8 feet in diameter.

7. Daryl Palmer also spoke against the tower stating it

would be unsightly to the residential neighbors and

dangerous if it fell on the adjoining gas station.

ZHB Op., Findings of Fact Nos. 6, 7. Although the testimony of Walsh and

Palmer supports the ZHB’s findings, these findings are insufficient to justify the

ZHB’s denial of Applicant’s special exception application.

To that end, where, as here, the terms of an ordinance have not

expressly placed the burden of persuasion regarding general detrimental effects to

11

the health, safety and welfare on an applicant, the applicant has the burden of

persuasion only as to specific requirements, while objectors have the burden as to

all general detrimental effects. See Marquise Investment, Inc. v. City of

Pittsburgh, 11 A.3d 607 (Pa. Cmwlth. 2010). Thus, an applicant for a special

exception need only prove compliance with the specific, objective special

exception criteria set forth in the zoning ordinance. Id.

Here, the ZHB did not determine that Applicant failed to satisfy any

of the specific, objective special exception criteria in the zoning ordinance.

Indeed, in its brief to this Court, the ZHB explains, “the only issue to be decided by

the trier of fact in this [a]pplication, which is the [ZHB], is whether or not the

proposed antenna will or will not ‘significantly negatively affect the desirable

character of the existing residential neighborhood,’ under 118.C.4.e [of the zoning

ordinance].” Br. of Appellee, City of Scranton Zoning Hearing Board, at 10.

Further, because Section 118(C)(4)(e) relates to general detrimental

effects to the health, safety and welfare of the neighborhood and because the

zoning ordinance does not clearly place the burden regarding this criterion on a

special exception applicant, the objectors bore both the initial evidence

presentation duty and the persuasion burden. Bray. Additionally, the law is clear

that the objectors cannot meet their burden by merely speculating as to possible

harm. Marquise Investment.

To satisfy their burden, the objectors had to show, to a high

probability, that the proposed use would generate adverse impacts not normally

12

generated by this type of use, and that those impacts would pose a substantial

threat to the health and safety of the community. Oasis v. Zoning Hearing Bd. of

S. Annville Twp., 94 A.3d 457 (Pa. Cmwlth. 2014). This is particularly true here

given that Section 118(C)(4)(e) of the zoning ordinance requires the ZHB to

consider whether the proposed use will significantly negatively affect the desirable

character of an existing residential neighborhood. Testimony based on specific past

experiences can satisfy this burden, but bald assertions, personal opinions and

speculation will not. Oasis.

As Robert S. Ryan illustrates, “[p]roof that goes no further than to

establish (for example) that there are residences close to a proposed gasoline

station is insufficient, for to permit a denial on that basis would be to overrule the

legislative judgment reflected in zoning.” Robert S. Ryan, Pennsylvania Zoning

Law & Practice, §5.3.4 (rev. 2003).

Here, before the ZHB, the objectors (Palmer and Walsh) testified to

the following concerns: (1) existing problems with flooding in the area of the

proposed tower; (2) that there was a possibility the proposed tower could fall onto

an adjacent gas station; (3) that the proposed tower would cause a potential

decrease in property values; and, (4) that the proposed tower created aesthetic

concerns. Our review of the ZHB’s hearing transcript reveals the objectors’

concerns were based on bald assertions, personal opinions and speculation. See

R.R. at 215a-226a. Thus, the objectors’ testimony did not show a high probability

that the proposed tower would generate adverse impacts not normally generated by

a commercial communications tower.

13

More specifically, although the objectors expressed general concerns

over flooding in the area, these concerns related to pre-existing flooding issues.

Indeed, the objectors offered no clear explanation as to how the proposed tower

would exacerbate those issues. This is not surprising in light of the fact that

Applicant’s proposal does not entail an increase in the existing impervious surface

at the property. R.R. at 209a-210a. Further, in response to the objectors’

testimony on this point, Applicant’s representative testified that construction of the

tower would not increase any existing flooding issues in the area. R.R. at 227a,

231a-32a. And, most importantly, the ZHB made no finding that the proposed

tower would create or intensify any flooding issues.

Further, the objectors’ testimony regarding the chance the proposed

tower could fall was based purely on speculation, which the objectors did not even

attempt to substantiate. See R.R. at 218a, 224a. Contrary to the objectors’

speculative testimony, Applicant’s representative testified that in more than 30

years he built over 200 cellular communications towers, none of which ever fell.

228a-29a. He further testified that the towers are designed based on area wind

speeds, and they are built not only to withstand those wind speeds but to withstand

even “more robust” wind speeds. R.R. at 229a.

Finally, the objectors’ general testimony regarding a potential decline

in property values and general aesthetic concerns is also insufficient to meet their

burden. In Coble Construction Co. v. Zoning Hearing Board of Borough of East

Stroudsburg, 329 A.2d 912 (Pa. Cmwlth. 1974), this Court explained:

Neither aesthetic reasons nor the conservation of property

values nor the stabilization of economic values in a

14

township are, singly, or combined, sufficient to promote

the health or the morals or the safety or the general

welfare of the township or its inhabitants or property

owners, within the meaning of the enabling act or under

the Constitution of Pennsylvania. The Legislature in

providing for special exceptions in zoning ordinances has

determined that the impact of such a use of property does

not, of itself, adversely affect the public interest to any

material extent in normal circumstances, so that a special

exception should not be denied unless it is proved that

the impact upon the public interest is greater than that

which might be expected in normal circumstances. …

The burden is on the township and the protesting

neighbors, if there are any, to [p]rove by evidence that

the impact of the requested use in its normal operation

would be injurious to the public health, safety and

welfare. The protestants cannot sustain that burden by

merely introducing evidence to the effect that property

values in the neighborhood may decrease.

Id. at 917 (citations and quotations omitted) (emphasis added); see also

Lombardozzi v. Millcreek Twp. Zoning Hearing Bd., 829 A.2d 779 (Pa. Cmwlth.

2003) (aesthetic factors alone cannot justify a municipality’s zoning decision);

Shamah v. Hellam Twp. Zoning Hearing Bd., 648 A.2d 1299, 1304 (Pa. Cmwlth.

1994) (adverse effect on public welfare cannot be established “by merely

introducing evidence to the effect that property values in the neighborhood may

decrease”). In light of the fact that the objectors’ other reasons for opposing

Applicant’s special exception application are unsustainable, the protection of

aesthetics and property values cannot serve as sufficient bases for the ZHB’s denial

of Applicant’s special exception application. Wyomissing Area Sch. Dist. v.

Zoning Hearing Bd. of Wyomissing Borough, 128 A.3d 851 (Pa. Cmwlth. 2015),

appeal denied, 141 A.3d 484 (Pa. 2016). Moreover, as with their other concerns,

the objectors’ lay testimony on this point was based solely on their personal

15

opinions, bald assertions and speculation, which is insufficient to meet their

burden. Oasis.

In sum, the objectors offered speculative testimony regarding the

alleged adverse effects of Applicant’s proposed communications tower. The

objectors did not present evidence that the proposed tower would generate adverse

effects greater than that normally expected from this type of use. Further, while

the objectors offered some testimony that Applicant’s proposed use was

inconsistent with the character of the neighborhood, the fact remains that the

property lies in a Light Industrial District, and communications towers (as well as a

wide array of other commercial and industrial uses) are permitted by special

exception in that district. Additionally, while there are some residences near the

property, the property is largely surrounded by commercial and industrial uses.

R.R. at 198a, 227a. Also, a 120-foot high guyed tower currently exists on the

property. The objectors’ general concerns were directed more at the language of

the zoning ordinance, which permits a communications tower by special exception

in the I-L District, rather than Applicant’s specific proposed use. Thus, the

testimony offered by the objectors was not sufficient to defeat Applicant’s special

exception application. The ZHB erred in determining otherwise.

Accordingly, we reverse the deemed denial of Applicant’s special

exception application.

ROBERT SIMPSON, Judge

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allegheny Tower Associates, LLC, :

Appellant :

:

v. : No. 2085 C.D. 2015

:

City of Scranton Zoning Hearing :

Board :

ORDER

AND NOW, this 10th day of January, 2017, the order of the Court of

Common Pleas of Lackawanna County is REVERSED.

ROBERT SIMPSON, Judge