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Tu-Way Tower Co. v. Zoning Hearing Bd. of Salisbury Tp.,
688 A.2d 744 (Pa. Cmwlth.1997)
A telecommunications company sought to expand its existing tower infrastructure by adding 200' to the height of an existing tower and to build two additional 200' towers with supporting ancillary buildings.
Relying on the pending ordinance doctrine, which allows municipalities to apply proposed but not yet enacted zoning ordinance provisions to deny zoning applications or building permits, Township rejected Company's application because it did not provide for sufficient setback under the proposed setback revisions. Both the court of common pleas and the Commonwealth Court affirmed the zoning hearing board's decision to deny the application.
On appeal to the Commonwealth Court, the Company argued that its expansion project constituted "land development" within the meaning of Section 107 of the Municipalities Planning Code and, consequently, under 603(c)(2.1), the municipality had to apply the zoning ordinance in effect at the time the company submitted the land development application.
The Commonwealth Court denied the Company the protections of Section 603(c)(2.1) upon concluding that the proposed expansion did not constitute "land development" under Section 107. In support of its conclusion, the Commonwealth Court stated: 1) the Company was not dividing the land, 2) the construction of "accessory buildings on a developed piece of land . . . does not rise to the level of land development," and 3) sub-division and leasing of tower space is not synonymous with "land division."
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