McMahon v. Kingston Township Board of Supervisors, 771 A. 2d 96 (Pa. Commw. April 5, 2001).
COMMUNICATIONS TOWER: NOT A 'SEMI-PUBLIC' USE
A 150-foot cellular communications monopole is not a public or semipublic use under a zoning ordinance. In this case, the ordinance defined “public use” but did not define a “semi-public” use. The monopole was proposed to be located in a residential district that permitted as a conditional use, public and semi-public uses. The court decided that a public or semi-public use is one that is supported in whole or in part by public dollars, either tax revenues or charitable contributions, and not by sales revenue or private financing. The court opined that to decide otherwise would permit any retail establishment serving the public to be considered a semi-public use.
Furthermore, the court found that the monopole did not satisfy the zoning district’s setback and height requirements. Under the township’s ordinance, a conditional use could be granted if it required a variance and so the proposed use could not be approved.
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