Richards, et al. v. Borough of Coudersport Zoning Hearing Bd., 979 A.2d 957 (Pa. Commw. Ct. 2009).
County's legal obligation to upgrade its emergency communication systems satisfied the "unique physical circumstances" element for a variance requested to permit a communication tower that exceeded the height limitation in the zoning ordinance.
The County owned a 300-acre property which contained several buildings. One building was used for emergency medical services (EMS) and included a communication tower as an accessory structure. By law (Act 56 of 2003), the County was required to upgrade some of its systems. To do so, it needed to move its EMS headquarters to a second building on the property and construct a 120-foot communication tower and various accessory improvement. Neighbors objected to the tower, but the Zoning Hearing Board determined the County met the criteria for variances under the MPC and the municipal ordinance.
Objectors raised three issues on appeal. First, Objectors argued that the proposed use of the property and the height of the communication tower were not permitted in the zoning district. The Commonwealth Court held that “[b]ecause the EMS/PSAP Headquarters and communications tower uses existed prior to the enactment of the ordinance, those uses are considered preexisting, nonconforming uses” and may continue. Next, Objectors argued the expansion doctrine only permitted expansion within the same building. The Court held that, while true, Objector’s statement applies only with respect to expansion by right; the County could, with a variance, expand its use to another building on the property that was formerly used as a mental health facility (then, an abandoned nonconforming use). Finally, Objectors argued the decision was based solely on a finding of benefit to the community. The Court determined that the County had met all of the MPC’s hardship criteria for various reasons. Of particular note, the Commonwealth Court found, again, that legal necessity (Act 56) was sufficient to meet the “unique physical characteristics” criteria of the MPC.
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