Citation:

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

Summary:
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.
Case Details:

SBA Towers (Applicant) intended to build a communications tower (Tower) on property (Property) owned by a homeowners association (Owner) for the benefit and use of Verizon Wireless (Verizon).  Applicant had an option to lease (Agreement) that afforded Applicant rights above and beyond a basic option agreement.  Verizon intended to install antennas on the Tower (the Tower and antennas together are the Facility) with the intention of filling a coverage gap in Unity Township (Township).  Communication towers were permitted in the relevant zoning district by special exception.  Applicant and Verizon filed an application for a special exception (Application) which was denied by the Township’s Zoning Hearing Board (ZHB), in part because the ZHB determined neither Applicant nor Verizon were “landowners” (i.e., applicants) under the Pennsylvania Municipalities Planning Code (MPC).  The ZHB also denied the Application on substantive grounds.  Applicant appealed to the Court of Common Pleas and Verizon intervened.  The trial court reversed the ZHB’s decision and various individuals and the local airport authority appealed to the Commonwealth Court.  The Commonwealth Court upheld in part and reversed in part.  The Court reached conclusions on a number of issues which are addressed below.

Where the terms of a lease option agreement make it clear “that the owners of the subject properties have granted [the option holder] an interest beyond that of a ‘proposed leaseholder’ and have conferred upon [the option holder] a proprietary interest in the subject properties,” the option holder is a landowner with standing to be an applicant.  Here the Agreement granted Applicant “the right to enter the [Property] to conduct tests and studies . . . to determine the suitability of the [Property] for [Applicant’s] intended use.”  Further it required Applicant to obtain governmental approvals and permits for the use and “specifically authorize[d Applicant] to exercise [the Owner’s] rights as owner of the Property.”  As a result, Applicant had standing to file the zoning hearing board application.

Where a person is “situated as to be adversely affected” by a decision of the trial court, that court has discretion to allow such person to intervene, pursuant to the Pennsylvania Rules of Civil procedure, even if Section 1004-A of the MPC would not otherwise permit intervention.  Further, while a hearing on the matter is preferable, despite the language of Pennsylvania Rule of Civil Procedure No. 2329, related to intervention, a hearing is not mandatory if the record establishes that an intervenor is situated as to be adversely affected by the lower court’s decision.  Here, the record established that Applicant intended to “construct the communications tower on the Property specifically for Verizon so that Verizon [could] collocate its antennas to fill an existing gap in its coverage.”  Therefore, Verizon was situated as to be adversely affected and it was proper to permit Verizon’s intervention.

Section 1005-A of the MPC “permits the trial court to hold a hearing to take additional evidence upon motion.”  While the trial court has discretion as to whether to take additional evidence, such discretion may only be exercised after a party files a motion.  Here, the trial court held a hearing sua sponte to determine the business relationship between Applicant and Verizon.  The Commonwealth Court determined the trial court abused its discretion when it held a hearing on the issue sua sponte because the MPC clearly permits a hearing only upon motion.

The Township’s Zoning Ordinance (Zoning Ordinance) required Applicant to make a good faith effort to collocate antennas on existing towers within a quarter mile radius of the Property.  Verizon analyzed certain locations but determined each was too far away or could not fill the coverage gap for other reasons.  Objectors argued there were towers within 1,000 feet of the Property that were not considered.  The Commonwealth Court rejected Objectors’ contention because there was no evidence in the record of such towers.  The only mention of towers within 1,000 feet of the Property were made by Objectors’ attorneys during cross examination.

The Zoning Ordinance required an applicant to submit evidence that it is licensed by the Federal Communications Commission (FCC) to operate a communications tower and communications antennas.  Applicant and Verizon submitted evidence that Verizon was licensed by the FCC to operate the Facility.  However, the ZHB determined neither Applicant nor Verizon were applicants, and only the determination related to Applicant was appealed and overturned.  No party appealed the ZHB’s determination regarding Verizon’s status as an applicant.  As a result, Applicant and Verizon failed to provide evidence that the sole applicant was authorized to operate the Facility.

The Zoning Ordinance required an applicant to demonstrate that proposed communications towers and antennas comply with FCC standards governing human exposure to electromagnetic radiation.  The only evidence submitted on the issue was a letter from a Verizon employee that the Facility would comply with FCC standards based on a “radio frequency (RF) compliance pre-construction evaluation.”  Relying on one of its own unreported decisions related to another letter drafted by the same Verizon employee, the Commonwealth Court determined the letter was too conclusory.  While the letter was insufficient, the Court stated “it is the FCC, not the ZHB, that determines whether the proposed communications tower will comply with FCC standards.”  As a result, the ZHB may require the actual written evaluation, but may not require “any extraordinary level of detail regarding how the proposed communications tower will comply with FCC standards.”

The Zoning Ordinance required applicants to demonstrate “that the proposed communications tower would be the minimum height necessary to perform its function.”  Per the Application, the function of the Facility was to fill a coverage gap.  Expert testimony on the record established that the antennas had to be located at least 145 feet high to fill the coverage gap and that placing them at 95 feet high would reduce Verizon’s ability to fill the coverage gap by 50%.  Accordingly, there was sufficient evidence on the record to determine that 145 feet was the minimum height necessary for the Facility to perform its function.

The Zoning Ordinance required applicants to prove the proposed communication tower will comply with all applicable FAA and Pennsylvania Bureau of Aviation (PBA) regulations.  Applicant submitted letters from the FAA and PBA indicating the Facility would comply with the relevant regulations.  Objectors argued testimony from employees and pilots of the local airport showed the location of the Tower was unsafe.  The Commonwealth Court determined Objectors were arguing the wrong point.  Applicant and Verizon demonstrated compliance with a specific criterion provided by the Zoning Ordinance.  Objectors’ evidence did not contradict the evidence presented; rather, it was evidence related to the public’s health, safety and welfare.  Therefore, the letters from the FAA and PBA established that the Facility complied with the relevant regulations as required by the Zoning Ordinance.  Accordingly, the ZHB abused its discretion by applying Objectors’ evidence on that point.

Date of Decision: 2/16/18

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