Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, (Pa. Commw. Ct. 2018), appeal denied 2019 Pa. LEXIS 1392.

When an applicant for a special exception provides sufficient evidence establishing that the application complies with an ordinance’s general requirements, an objector opposing the application has the burden to establish, to a high degree of probability, that the proposed use would be detrimental to the public health, safety, or welfare
Case Details:

Applicant appealed the trial court’s decision affirming the Township Zoning Hearing Board’s (ZHB) denial of Applicant’s special exception application for a proposed communication tower to be in a residential zone.  The ZHB’s decision listed Applicant’s lack of testimony regarding the area’s need for improved wireless service and the negative impact the tower would have upon motor and pedestrian traffic as its basis for denying Applicant’s application. On appeal to the Commonwealth Court, Applicant argued (1) that the ZHB abused its discretion in concluding that Applicant did not meet the necessary burden of proof to obtain a special exception because the burden to prove that the proposed tower would detrimentally affect the overall health, safety, and welfare of the community rests with the neighbors opposing the application (Objectors); (2) the ZHB’s findings relating to the communication tower adversely affecting the community were not supported by substantial evidence; and (3) the testimony from the Township and Objectors regarding the communication tower adversely affecting the local area was speculative and, therefore, unable to constitute substantial evidence.

The Commonwealth Court determined that an applicant for a special exception has the duty of presenting evidence and the burden of persuading the zoning hearing board that the proposed use satisfies the objective requirements of the zoning ordinance for the grant of special exception. Additionally, the Court determined that once an applicant satisfies this burden, the burden shifts to objectors to prove “to a high degree of probability” that the proposed use will substantially affect the community to a greater degree than would be normally expected from such use. The Court determined that the Township’s ordinance did not impose any objective requirements on special exception applicants. Thus, the Court ruled that the Applicant satisfied its burden, which caused the burden to shift to the Objectors.

The Court next assessed the ZHB’s reasons for rejecting the application. The Court determined the record included no evidence or testimony with respect to potential negative impacts the communication tower would have on traffic; therefore, it was improper for the ZHB to include traffic as a reason to reject the application.  In addition, while Objectors introduced testimony that the proposed tower would decrease the value of nearby property and negatively impact the area’s overall aesthetic value, the Court determined that a decrease in property value and general aesthetic concerns, alone, are insufficient grounds to reject a special exception application. Thus, the ZHB’s determination that the tower would adversely affect the community was not supported by substantial evidence and the court ruled in favor of the Applicant.


Date of Decision: 7/30/18

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