Northeast Pa. SMSA Ltd. P’ship v. Scott Twp. Zoning Hearing Bd., 18 A.3d 1272 (Pa. Commw. Ct. 2011).
Court considered potential loss of value and development potential to neighboring properties in evaluating the potential adverse effects on the neighborhood or potential detriment to the public.
Applicant sought a variance to construct a 198-foot tall communications tower that would be set back approximately 55 feet from certain residences when the zoning ordinance required that it be setback approximately 297 feet. The trial court reversed the Zoning Hearing Board’s denial of the variance. The Commonwealth Court reversed the trial court’s decision and found the Applicant failed to meet its burden. The Commonwealth Court stated it is the party seeking the variance who has the burden of proof to show that all five variance requirements are met. In this case, Applicant failed to prove that the variance would not have an adverse affect on the neighborhood, impair the use of neighboring property, or be detrimental to the public. While Applicant’s experts testified with respect to design, construction, and safety insofar as it related to weather conditions, Applicant did not demonstrate that the neighboring property owners’ (who opposed the application) home values and ability to develop their properties would not be affected. In addition, there were concerns with the homes being located within the structure’s fall radius.
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