SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd

In certain circumstances, the holder of an option to lease is a “landowner” with standing to be an applicant for zoning approvals and relief. A person may intervene in a land use appeal at the court’s discretion where such person is “situated as to be adversely affected” by a decision of the court. Where it is claimed that an applicant did not make a good faith effort to find towers for collocation of antennas, comments by an objector’s attorney that other towers existed for collocation and that applicant did not analyze them are insufficient evidence that the applicant failed to act in good faith. For purposes of zoning approvals or relief where an ordinance requires that the applicant be licensed by the Federal Communications Commission (FCC), a licensed issued by the FCC for the party that will use the tower but that is not the applicant is not sufficient to prove the applicant is licensed by the FCC. Where an ordinance requires an applicant to demonstrate that a proposed tower or antenna comply with FCC standards governing human exposure to electromagnetic radiation, a conclusory letter from an employee associated with an applicant is insufficient evidence of compliance. Where the purpose of an application for a telecommunications tower and antennas is to fill a coverage gap, if expert testimony establishes that the antenna must be at a certain height to fill the coverage gap, evidence form objectors that a tower of the height required is unsafe from some other perspective (e.g., flight paths for planes) does not refute the evidence provided.

SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 70

Date of Decision: 2/16/18

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Reihner v. City of Scranton Zoning Hearing Board

A court is required to interpret ordinance provisions in the applicant’s favor if ambiguity exists in an ordinance provision. Here, there was ambiguity in the definition of "Bed & Breakfast Use" and, interpreting the ambiguity in favor of the application, the court ruled that the property owners did not operate a Bed & Breakfast because they did not serve breakfast to guests.

Reihner v. City of Scranton Zoning Hearing Board, 176 A.3d 396 (Pa. Commw. Ct. 2017)

Date of Decision: 2/1/18

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Pequa Twp. v. Zoning Hearing Bd

A variance may be granted under the de minimis doctrine when (1) only a minor deviation from the zoning ordinance is sought and (2) rigid compliance with the ordinance is not necessary for the preservation of the public interests sought to be protected by the ordinance. Where the de minimis doctrine applies, “there is no need to resort to any other theory of relief.” In addition, a dimensional variance that would create a nonconformity is distinguished from dimensional variances that would bring a property into conformance with a zoning ordinance.

Pequa Twp. v. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 102

Date of Decision: 1/8/18

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Berner v. Montour Twp. Zoning Hearing Bd.

The language of a provision of a zoning ordinance is objective and specific if it requires an applicant to make certain identified submissions. The relevant section of the Nutrient Management Act only preempts a provision of a zoning ordinance if the operation requires a Nutrient Management Plan.

Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058 (Pa. Commw. Ct. 2018)

Date of Decision: 1/4/18

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In re Appeal by Grande Land, L.P.

Where an ordinance requires that a proposed development plan shows the development will be served by a sewage disposal system approved by the Pennsylvania Department of Environmental Protection (DEP), applicants are only required to show the proposed system is one that is typically approved by DEP.

In re Appeal by Grande Land, L.P., 174 A.3d 1178 (Pa. Commw. Ct. 2017)

Date of Decision: 11/17/17

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London v. Zoning Bd. of Phila.

Legislation is presumed to be constitutional, therefore, constitutional challengers must overcome a heavy burden to prevail. A challenged provision is invalid, as being overbroad, if it prohibits a substantial amount of protected speech. Provisions are only void for vagueness if “persons of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.”

London v. Zoning Bd. of Phila., 173 A.3d 847 (Pa. Commw. Ct. 2017)

Date of Decision: 11/15/17

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Dambman v. Bd. of Supervisors

Where a township’s subdivision and land development ordinance is silent as to when a zoning permit must be obtained in relation to an application for approval of a land development plan, there is no requirement that an applicant obtain zoning permits before seeking approvals for the land development plan.

Dambman v. Bd. of Supervisors, 171 A.3d 969 (Pa. Commw. Ct. 2017)

Date of Decision: 10/6/17

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Marshall v. Charlestown Twp. Bd. of Supervisors

Where an ordinance allows for conditional use approval for proposed uses that are “educational” in nature but does not define the term, the definition is broad. However, when determining if a use is “educational,” courts should focus on the primary function of the facility.

Marshall v. Charlestown Twp. Bd. of Supervisors, 169 A.3d 162 (Pa. Commw. Ct. 2017)

Date of Decision: 8/29/17

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DiMattia v. Zoning Hearing Bd.

To determine whether a use is considered to be “customarily found” and “incidental” to the permitted use, it is proper to consider “both the type and intensity of the use and whether uses of that type and intensity are akin to uses that are customarily found or would reasonably be expected with that primary use in the area where the property is located.” A use cannot be subordinate to a residential use if the use occurs on a property where the persons engaging in it do not reside. Similarly, a use cannot contribute to the comfort, convenience, or necessity of the occupants where the use does not benefit occupants, but rather benefits other persons engaging in the use.

DiMattia v. Zoning Hearing Bd., 168 A.3d 393 (Pa. Commw. Ct. 2017)

Date of Decision: 8/9/17

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