In Re Appeal of Holtz
2010 Pa. Commw. LEXIS 596
Pa. Commw. Ct.2010Background
- Pegasus applied (Dec. 29, 2004) for a special exception and height variance to build a 195‑foot tower on Ridgway Area School District property in an A‑1 Conservation district (height limit 15 feet).
- ZHB granted the special exception and variance; Property Owners appealed to the trial court, which remanded for procedural corrections; after remand, ZHB again granted, and the trial court affirmed; this Court remanded for written findings under MPC §908 and the Zoning Ordinance.
- On remand, ZHB adopted Pegasus’s proposed findings; general compatibility was supported by Harold Timmons’s testimony that the wooded site is distant from schools and residences, will have limited access, and will not disturb the rural character; the site is near a hilltop, a common location for towers.
- The variance was authorized under Zoning Ordinance §406.2, which permits height variances with increased setbacks for tall structures; the Board treated §406.2 as controlling over the general variance provisions in §908; the court found §406.2 creates an exception and rejects the “hardship” requirement of §908 for tall structures.
- The Commonwealth Court affirmed the ZHB, holding substantial evidence supported the compatibility finding and that §406.2 governs height variances for tall structures, avoiding an absurd result if towers were limited to 15 feet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ZHB abused its discretion on compatibility for the special exception. | Holtz et al. argue insufficient evidence of compatibility. | Pegasus contends testimony shows general compatibility with adjacent properties. | No; substantial evidence supports compatibility finding. |
| Whether the ZHB properly granted the height variance under §406.2 notwithstanding §908. | Owners contend §908 findings apply; no hardship shown. | §406.2 provides an exception to §908 for tall structures with required setbacks. | Yes; §406.2 controls as an exception to §908 for tall structures. |
| Whether East Caln and related authority compelled a hardship-based analysis under §908. | East Caln limitations on hardship apply. | Ridgway’s §406.2-specific provisions distinguish this case from East Caln. | Distinguishable; §406.2-specific provisions govern here. |
| Whether the Board’s findings complied with §907.2(H) on general compatibility. | Findings insufficient for compatibility. | Findings supported by expert testimony. | Affirmed; findings adequate. |
Key Cases Cited
- Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d 1274 (Pa. Cmwlth. 2002) (substantial evidence standard; abuse of discretion)
- East Caln Twp. v. Zoning Hearing Bd. of East Caln Twp., 915 A.2d 1249 (Pa. Cmwlth. 2007) (hardship analysis; East Caln distinguishable on §406.2 vs §908)
- In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2006) (statutory construction; general vs special provisions; absurd result)
- West Whiteland Tp. v. Sun Oil Co., 316 A.2d 92 (Pa. Cmwlth. 1974) (standard of review for findings of fact)