Regulation of Particular Uses

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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KS Dev. Co., L.P. v. Lower Nazareth Twp.

A claim that zoning restrictions render development of some use economically infeasible is a claim of de facto exclusion, not de jure exclusion. Where de facto exclusionary claims exist, analysis under Surrick is appropriate. In addition, where a zoning ordinance defines the term “apartment,” and other uses are individually restricted so as to preclude inclusion as an apartment nor included in the definition of apartment, the other uses are not apartments. However, a use permitting residential multifamily/apartment dwelling on upper floors and commercial uses on the first floor is an apartment use.

KS Dev. Co., L.P. v. Lower Nazareth Twp., 149 A.3d 105 (Pa. Commw. Ct. 2016)

Date of Decision: 5/17/17


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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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Marchenko v. Zoning Hearing Bd. of Pocono Twp.

Where an ordinance is vague or ambiguous, zoning hearing boards have a duty to construe the words of an ordinance broadly to ensure that any doubt in interpreting the zoning ordinance is resolved in favor of the landowner and the least restrictive use of the land.

Marchenko v. Zoning Hearing Bd. of Pocono Twp., 147 A.3d 947 (Pa. Commw. Ct. 2016)

Date of Decision: 9/19/16


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Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd.

Restrictions in zoning ordinances must be interpreted narrowly and must not be construed to restrict the use of land by implication. Ambiguities in zoning ordinances must be construed in favor of landowner.

Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 164 A.3d 633 (Pa. Commw. Ct. 2017)

Date of Decision: 6/21/17


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Shvekh v. Zoning Hearing Bd.

Where an ordinance is vague or ambiguous, zoning hearing boards have a duty to construe the words of an ordinance broadly to ensure that any doubt in interpreting the zoning ordinance is resolved in favor of the landowner and the least restrictive use of the land.

Shvekh v. Zoning Hearing Bd., 154 A.3d 408 (Pa. Commw. Ct. 2017)

Date of Decision: 2/6/17


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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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