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Waiver and laches do not serve as a defense to a citizen’s action challenging a zoning amendment to permit a communications tower on public property where the municipality failed to provide sufficient information to put citizens on notice of the project.
White v. Township of Upper St. Clair, No. 886 C.D. 2008, 2009 Pa. Commw. LEXIS 78 (Pa. Commw. March 3, 2009).
The Township of Upper St. Clair entered into an agreement with a communications company whereby the Township agreed to lease a half acre of property in a Township-owned park for construction of a communications tower. Under the terms of the agreement, the company would provide the Township with emergency communications services and pay rent for a period of 25 years, but the company was permitted to erect a 350 feet high tower and three adjoining buildings surrounded by an 8 feet high, barbed wire fence for its communications services. The Township passed zoning amendments which exempted the Township and the company from all provisions of the Township’s Zoning Ordinance. Although the Township advertised the zoning amendment, the advertisement provided no details of the purpose for the amendment or the planned construction. Further, all negotiations over the lease were conducted in closed, executive sessions. After construction began, a Township resident became aware of the project, wrote a letter to the Supervisors and attended meetings objecting. The citizen filed a lawsuit within 40 days of learning of the project, but the construction was complete by the time the action was filed. The Trial Court dismissed the Complaint based on its finding that the citizen unreasonably delayed in bringing the action and the Township and communications company were prejudiced as a result. The citizen appealed.
The Commonwealth Court explained that the action would be barred under the doctrine of laches (sleeping on your rights) if there was evidence of delay arising from the citizen’s failure to exercise due diligence and resulting prejudice to the Township. In determining whether the citizen failed to exercise due diligence, the Court had to determine when the Plaintiff knew, or by use of information within his reach, should have known about the project. After reviewing the evidence, the Court determined that based on the Township’s failure to provide full and accurate information concerning the purpose and effect of the zoning amendments in the advertisements or during public meetings, the citizen could not have known before he actually learned – on October 2, 1996 – of the scope and nature of the work. He filed the lawsuit on November 14. The Court determined that by taking action within 40 days, despite the fact that construction was complete by the time the suit was filed, the Plaintiff did not fail to exercise due diligence, rendering the doctrine of laches inapplicable as a defense to the lawsuit. As a result, the Court remanded the case for consideration of whether the Township violated the deed restrictions, the Donated or Dedicated Property Act, the Ordinance or the Township’s Home Rule Charter in amending the zoning and allowing use of property for other than recreation.
Opinion Date: March 3, 2009
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