Cellco Partnership v. North Annville Township ZHB, (Pa. Commw. Ct. 2007).
A cell phone tower was not a permitted use in an R-1 Residential District because it was not sufficiently similar to the allowed uses of a public utility or municipal structure.
Verizon requested to place a cell phone tower in a Rural-Residential R-1 District where a cell tower was not listed as a permitted use arguing that under the “savings provision” of the Zoning Ordinance, the tower was similar to a municipal tower or principal utility structure, which was expressly allowed, and therefore compatible with uses allowed in the district. Verizon also argued that it would suffer a hardship if it was not allowed to place the tower in the R-1 District and that the zoning ordinance was unconstitutionally exclusionary. The Zoning Hearing Board (“ZHB”) found that the tower was not compatible with uses in the district and was wholly dissimilar from either a municipal structure or principal utility structure. The ZHB also held that the tower would be allowed in a General Commercial District; therefore, the zoning ordinance was not unconstitutionally exclusionary. The trial court affirmed the findings of the ZHB.
Verizon appealed to the Commonwealth Court arguing that the zoning ordinance was exclusionary and that the tower was similar to a municipal or principal utility structure. The Commonwealth Court found that Section 619 of the MPC mandated that principal utility structures be allowed anywhere. It further concluded that the Public Utility Commission, not the Township, had the exclusive authority to decide where to place these structures. The Township was not permitting these structures in this district, but was complying with the mandates of the MPC. The Court also found that the cell phone tower was not similar to a municipal tower because the proposed cell phone tower was a commercial enterprise and would not serve the public interest like a municipal structure. The Court found that the tower did not fit within the overall intent of the R-1 District.
Finally, the Commonwealth Court rejected Verizon’s argument that the zoning ordinance was exclusionary because the tower would be allowed in the Commercial District and would not be totally excluded. The tower would be similar to other uses in a Commercial District because the tower would involve commerce.
In a dissenting opinion, Judge Leadbetter found that the Board and the Court took an overly restrictive interpretation of the ordinance because a zoning ordinance should be construed in a manner that allows a landowner the broadest scope of use. Judge Leadbetter stated that the allowance of a municipal structure opens the door to the erection of a radio dispatch tower. She believes that a cell phone tower is sufficiently similar to this use to be allowed in the R-1 District. Further, Judge Leadbetter found that since public utility structures, such as an electrical transmission tower, are allowed in every district, cell towers which are similar to electrical towers are also implicitly allowed in every district.
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