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Public health and safety concerns alone will not support a finding of undue hardship to permit a dimensional variance.
East Caln Township v. East Caln Zoning Hearing Board, 915 A.2d 1249 (Pa. Cmwlth. 2007).
Cingular Wireless leased property located in the OC-1 Office Commercial District of East Caln Township, where it located a 103 foot monopole telecommunications tower.
Cingular had been experiencing coverage gaps in its existing wireless communications service. A substantial coverage hole impacted the reliability of the 911 emergency service. Accordingly, in March 2005, Cingular filed an application seeking a variance from several Zoning Ordinance restrictions. Specifically, Cingular wanted to replace the 103 foot tower with a 123 foot tower to cure the coverage gap.
The Township’s Zoning Hearing Board (ZHB) granted Cingular a dimensional variance reasoning that the coverage gap qualified as a severe hardship to Cingular and its customers.
The Township appealed to the trial court arguing that Cingular failed to satisfy the hardship requirement of MPC Section 910.2; however, the trial court affirmed the ZHB’s decision.
The Township appealed to the Commonwealth Court, maintaining its position that Cingular failed to establish an actual hardship. The Commonwealth Court agreed with the Township and reversed. The Court held that while public health and safety issues are important, the law does not permit a variance on the basis of public interest, and reiterated that a variance, whether dimensional or use, is only appropriate where “the property, not the person, is subject to hardship.”
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