In Re Appeal of Towamencin Township
42 A.3d 366
| Pa. Commw. Ct. | 2012Background
- 81.43-acre dairy farm in Towamencin Township's R-200 district; owned by Bechtel family since 1806.
- Property used as residence and dairy farm with fourteen structures, including 55- and 80-foot silos.
- AT&T sought to co-locate antennas on the silo and obtain variances for height, antennas, and an equipment shed.
- AT&T and Bechtel submitted a conditional-use application; Township denied and AT&T pursued variances via ZHB.
- ZHB granted variances to 119'6" silo (height), up to 12 antennas at 117', and 240 sq ft equipment facility; Township appealed; Common Pleas affirmed; Township appeals to Commonwealth Court.
- Court addresses whether the variances are proper dimensional relief supported by substantial evidence under MPC, Hertzberg, and related case law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the variances are dimensional relief or a use variance. | Township argues variances amount to use relief. | Bechtel/AT&T contend it is dimensional relief within zoning framework. | Not a use variance; but upheld as dimensional relief supported by substantial evidence. |
| Whether there is an unreasonable hardship justifying the variance. | Hardship questioned; evidence allegedly not property-related. | Record shows hardship due to soil conditions and farm viability; not created by owner. | Substantial evidence supports hardship affecting property use and farm viability. |
| Whether the variances comply with Wireless Telecommunication Facilities provisions. | Ordinance limits and conditional-use framework not properly satisfied. | Ordinance contemplates co-location and proposed structures; reading ‘existing’ to include proposed is proper. | Variances align with wireless facilities provisions and co-location goals. |
| Whether the grant has minimal negative impact on the neighborhood. | Increased height and facilities would negatively affect character and scenery. | Evidence shows minimal impact; neighborhood supports continued farm operation. | Substantial evidence supports minimal neighborhood impact and preservation of character. |
Key Cases Cited
- Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550 (Pa. 1983) (standard for substantial evidence in variance decisions)
- Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 554 Pa. 249 (Pa. 1998) (dimensional variance analysis allows broader factors; not free-fire zones)
- Rollins Outdoor Advertising, Inc. v. Zoning Bd. of Adjustment, 529 A.2d 99 (Pa.Cmwlth. 1987) (use variance characteristics disguised as dimensional variance risk)
- Township of East Caln v. Zoning Hearing Bd. of East Caln Township, 915 A.2d 1249 (Pa.Cmwlth. 2007) (public-interest alone cannot justify a variance; hardship must attend the property)
- Schomaker v. Zoning Hearing Bd. of the Borough of Franklin Park, 994 A.2d 1196 (Pa.Cmwlth. 2010) (wireless case; differentiate hardship tied to property from use flexibility; location constraints)