Macioce v. ZHB of the Borough of Baldwin
850 A.2d 882, (Pa. Cmwlth. 2004).
A landowner and AT&T wireless claimed that the Borough was impermissibly prohibiting them from erecting a wireless tower where less then 1% of the land in the township could support a tower under the current zoning scheme. The test to determine if there is a de facto taking when a plaintiff alleges that the township is not allowing its “fair share” of a certain use is that there must be a very small area zoned for the particular use and the needs of the residents are not being adequately served.
While the landowner showed that the available land to erect wireless towers was small, he did not satisfy their burden of proving that the needs of the residents for wireless communication were not being met. AT&T wanted to build this tower because this was an area of “unreliable service.” But there were, in fact, already two towers in the township. There was nothing else on the record to determine the needs of the resident in the township.
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