HomeMy WebLinkAbout94-1346 Civil 7o
SPRINT CELLULAR and
VANCE WEBER, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Appellants :
: CIVIL ACTION - LAW
UPPER ALLEN TOWNSHIP, :
Appellee : 94-1346 CIVIL TERM
I~N RE: LAND USE APPEAL
BEFORE SHEELY p.j. and OLER J.
QRDER OF COURT
AND NOW, this ~'~ day of December, 1994, upon consideration
of Appellants, land use appeal, and for the reasons stated in the
accompanying Opinion, a hearing for the receipt of additional
evidence on the issue of conformity of Appellants, preliminary land
development plan with Section 220-11 of the Code of the Township of
Upper Allen is SCHEDULED for Friday, February 3, 1995, at 1:30
p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle,
Pennsylvania.
BY THE COURT,
Hubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellants
Stephen L. Grose, Esq. .
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
Attorney for Appellee
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SPRINT CELLULAR and : IN THE COURT OF COMMON PLEAS OF
VANCE WEBER, : CUMBERLAND COUNTY, PENNSYLVANIA
Appellants :
:
v. : CIVIL ACTION - LAW
:
UPPER ALLEN TOWNSHIP, :
Appellee : 94-1346 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE SHEELY, P.J., and OLER, J.
OPINION and ORDER OF COURT
Oler, J.
This case is an appeal from a decision of a township board of
commissioners disapproving a preliminary land development plan
submitted by Appellants.~ The record below contains findings of
fact by the Board, and no additional evidence has been taken at
this point by the Court for purposes of this appeal.2
Statement of Facts
In December of 1993, Appellants filed with Upper Allen
Township a preliminary land development plan (Plan) for a proposed
tower site to be located in Upper Allen Township3 and to be leased
to Appellant Sprint Cellular by Appellant Vance Weber.4 The Plan
~ See Act of July 31, 1968, P.L. 805, §1002-A, as amended, 53
P.S. Sll002-A (1994 Supp.) (jurisdiction of court of common pleas);
id., §909.1, as amended, 53 P.S. ~10909.1(a)(3) (1994 Supp.)
(jurisdiction of zoning hearing board).''
~ See Act of July 31, 1968, P.L. 805, §1005-A, as amended, 53
P.S. Sll005-A (1994 Supp.).
3 Certified Record, copy of land development plan submitted
by Appellants at file no. 93-12-10A.
4 Certified Record, Option and Land Lease Agreement,
Appellants' Exhibit 5.
94-1346 CIVIL TERM
proposed the construction of a communications tower at 706 West
Winding Hill Road, Mechanicsburg, Upper Allen Township, Cumberland
County, Pennsylvania (Subject Property), which would be 185 feet in
height and which would be located 145 feet from West Winding Hill
Road.~ The Plan was reviewed by the Upper Allen Township Planning
Commission at its meeting on December 27, 1993, at which time the
Commission recommended approval of the Plan with various
conditions.6 One of these conditions was as follows: "Add a note
to the plan indicating this site is underlain with carbonate rock
and there is a potential for sinkholes. Special construction
procedures may be necessary and desirable to mitigate these
geologic conditions."7 Subsequently, the Plan was modified to
include this statement as Note 16 of the revised plan.8
The Plan was reviewed by the Commissioners of Upper Allen
Township at their meeting on January 20, 1994.9 The Commissioners
noted that a communications tower as proposed in the Plan was
~ Certified Record, copy of land development plan submitted
by Appellants at file no. 93-12-10A; id., Decision, March 5, 1994,
Zoning Hearing Board of Upper Allen Township, at 14.
6 Certified Record, minutes of regular meeting of Upper Allen
Township Planning Commission held on December 27, 1993, at 6-7.
7 Certified RecOrd, minutes of regUlar meeting of Upper Allen
Township Planning Commission held on December 27, 1993, at 7.
8 Certified Record, copy of land development plan submitted
by Appellants at file no. 93-12-10A.
9 Certified record, portion of Board of Commissioners minutes
for its meeting on January 20, 1994.
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94-1346 CIVIL TERM
limited under the Township's zoning ordinance to a height of 35
feet, and that Appellants would have to obtain a variance from the
Zoning Hearing Board of Upper Allen Township before the Plan could
be approved.~° The Commissioners also noted that not all of the
conditions mentioned by the Planning Commission had been addressed
in the Plan.~ Accordingly, the question of approval of the Plan
was tabled, for further consideration by the Board at its meeting
scheduled for February 17, 1994.~2 Pursuant to a variance
application that Appellants filed with the Upper Allen Township
Zoning Hearing Board, Appellants attended a hearing of the Board on
February 9, 1994.~3 On March 5, 1994, the Zoning Hearing Board
granted Appellants the necessary variance for construction of the
proposed tower.TM
At the Board of Commissioners meeting on February 17, 1994,
the Board, by a three-to-two vote, rejected a motion to approve the
~0 Certified Record, portion of Board of Commissioners minutes
for its meeting on January 20, 1994, at 20.
~ Certified Record, portion of Board of Commissioners minutes
for its meeting on January 20, 1994, at 21.
~2 Certified Record, portion of Board of Commissioners minutes
for its meeting on January 20, 1994, at 21.
~3 Certified Record, Decision of Zoning Hearing Board of Upper
Allen Township, March 5, 1994.
~4 Certified Record, Decision of Zoning Hearing Board of Upper
Allen Township, March 5, 1994.
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94-1346 CIVIL TERM
Plan.~s After this vote, the Board held a fifteen-minute executive
session to permit township officials to formulate a statement in
support of disapproval of the Plan under the municipality's
codified ordinances.~ Afterward, the Board reconvened its public
session and a motion was made to reject Appellants' Plan; the
motion was based upon the following grounds under Chapter 220
(Subdivision and Land Development) of the Code of the Township of
Upper Allen:
1. Because the tower, as designed, could collapse
and fall across West Winding Hill Road, it is
the Commissioners' determination that the
proposed land development does not promote and
protect the safety of residents of Upper Allen
Township in accordance with the requirements
of Section 220-2 of the Code;
2. The proposed land development does not promote
and protect the health of residents of Upper
Allen Township in accordance with the
requirements of Section 220-2 of the Code, and
that residents at or near the site of the
tower will be exposed to potentially harmful
radio waves;
3. The proposed land development is located on
land subject to subsidence/sinkholes, and is,
therefore, unsuitable for development in
accordance with Section 220-11 of the Code;
4. Applicants have failed, pursuant to Section
220-8(B)(10) of the Code, to submit a
topographic map that provides a list of
variances/special exceptions Which apply to
~ Certified Record, portion of Board of Commissioners minutes
for its meeting on February 17, 1994, at 5.
~ Certified Record, portion of Board of Commissioners minutes
for its meeting on February 17, 1994, at 5.
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94-1346 CIVIL TERM
the parcel of land upon which development is
proposed.~7
The referenced provisions of the chapter of the Code of the
Township of Upper Allen which deals with subdivision and land
development are as follows:
§220-2. Authority; purpose.
This chapter is adopted pursuant to the
provisions of the Pennsylvania Municipalities
Planning Code (Act 247), effective January 1,
1969, and amended December 21, 1988, for the
purpose of promoting and protecting safety,
health and morals; to provide for the
coordinated development of Upper Allen
Township, Cumberland County, Pennsylvania; to
provide for the general welfare by guiding and
protecting amenity, convenience and future
governmental, economic, practical, social and
cultural facilities; to guide development and
growth, as well as to guide uses of land and
structures and the type and'location of
streets, public grounds and other facilities;
and to encourage and promote flexibility,
economy and ingenuity in the layout and design
of subdivisions and land developments.
S220-11. Suitability of land.
Land which is unsuitable for development
because of hazards to life, safety, health or
property shall not be subdivided or developed
until such hazards have been eliminated or
unless adequate safeguards against such
hazards are provided for in the subdivision or
land development plan. Land having any of the
following characteristics shall be deemed
unsuitable for development within the meaning
of this section: ...
C. Land subject to subsidence/sinkholes.
~7 Certified Record, portion of Board of Commissioners minutes
for its meeting on February 17, 1994, at 6.
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94-1346 CIVIL TERM
~220-8. Preliminary plat specifications.
B. A topographic map shall be submitted ...
showing: ...
(10) A list of variances/special exceptions
which apply to the land parcel being
developed.
The motion to disapprove the Plan was adopted by a three-to-
two vote.~8
On March 1, 1994, the Board of Commissioners of Upper Allen
Township advised Appellants in writing of the aforesaid reasons for
the rejection of the Plan.~9 On March 18, 1994, Appellants filed
an appeal to this Court from the Board's decision, asserting that
the reasons set forth by the Board of Commissioners in disapproving
the Plan were inadequate as a matter of law. On April 28, 1994,
Appellee filed an Answer to the Petition for Appeal. The matter
was argued on May 25, 1994.
DISCUSSION
The appeal in this case is governed by the Pennsylvania
Municipalities Planning Code.2° Under Section 1005-A of the Code,
it is provided that "[i]f the record below includes findings of
~8 Certified Record, portion of Board of Commissioners minutes
for its meeting on February 17, 1994, at 6.
~9 Certified Record, portion of Board of Commissioners minutes
for its meeting on February 17, 1994, at 6; Appellee's Exhibit A,
letter from Robert J. Sabatini, Jr., Township Manager, to
Appellants, dated March 1, 1994.
Act of July 31, 1968, P.L. 805, §101, 53 P.S. SSl0101 et
seq.
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94-1346 CIVIL TERM
fact made by the governing body ... whose decision ... is brought
up for review and the court does not take additional evidence ...
the findings of the governing body ... shall not be disturbed by
the Court if supported by substantial evidence." Act of July 31,
1968, P.L. 805, as amended, 53 P.S. §l1005-A (1994 Supp.).
Substantial evidence is defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550,
555, 462 A.2d 637, 640 (1983). Furthermore, the rejection of a
plan may stand if only one of several grounds is supported by
substantial evidence. Herr v. Lancaster County Planning Comm'n,
155 Pa. Commw. Ct. 379, 387, 625 A.2d 164, 168 (1993).
"[D]enial [of approval of a plan] is legally insufficient if
not supported by citation to a specific provision of law sufficient
to justify a denial." Goodman v. Board of Commissioners, 49 Pa.
Commw. 35, 40, 411 A.2d 838, 841 (1980). "[A] subdivision plan
which complies with applicable regulations must be approved." Id.
at 42, 411A.2d at 841.
With these principles in mind, the Court will address the
reasons for disapproval of Appellants' Plan as stated by the Board
of Commissioners:
The first reason articulated by the Board for disapproval of
Appellants' Plan was that, because the tower could collapse and
fall across West Winding Hill Road, the proposed land development
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94-1346 CIVIL TERM
would not promote and protect the safety of residents of Upper
Allen Township in accordance with the requirements of Section 220-2
of the Code.2~
Section 220-2, quoted heretofore, is a general declaration of
purpose to the effect that the municipality's subdivision/land
development regulations are designed to promote and protect safety,
health and morals. The section itself does not provide any
specific requirement upon which an evaluation of the Plan submitted
by Appellants can be undertaken. A declaration of purpose in a
subdivision ordinance which provides no specific requirement or
criteria by which courts can review a finding of noncompliance has
been held to be legally insufficient to support disapproval of a
proposed plan. Goodman v. Board of Commissioners, 49 Pa. Commw.
35, 411 A.2d 838 (1980).
A second reason articulated by the Board of Commissioners for
disapproval of Appellants' Plan was that, because of potentially
harmful radio waves, the proposed land development would not
promote and protect public health in accordance with the
requirements of Section 220-2 of the Code.2~
~' Certified Record, portion of Board of Commissioners minutes
for its meeting on February 17, 1994, at 6; Appellee's Exhibit A,
letter from Robert J. Sabatini, Jr., Township Manager, to
Appellants, dated March 1, 1994.
22 Certified Record, portion of Board of Commissioners minutes
for its meeting on February 17, 1994, at 6; Appellee's Exhibit A,
letter from Robert J. Sabatini, Jr., Township Manager, to
Appellants, dated March 1, 1994.
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94-1346 CIVIL TERM
In this regard, the record does not reveal the receipt of
expert testimony, authoritative sources or experimental data which
would warrant a Court's determination that substantial evidence is
contained therein to support a finding of public hazard from the
tower due to radio waves. In addition, as noted above, a general
declaration of purpose in a subdivision ordinance which provides no
requirement or criteria by which courts can review a finding of
noncompliance has been held to be insufficient to support a plan
denial.
A third reason articulated by the Board of Commissioners for
disapproval of Appellants' Plan was based on an alleged failure,
pursuant to Section 220-8(B)(10) of the Code, to submit a
topographic map with a list of variances and special exceptions
"which apply" to the parcel of land in question.
Note 15 on the revised Plan submitted to Upper Allen Township
states the following: "A variance for the height of the tower has
been applied for to the Upper Allen Zoning Hearing Board.-23 It can
be argued that Note 15 does, in fact, list the variances "which
apply" to the land parcel being developed. On the other hand, at
the time the Commissioners voted upon the Plan, the variance
eventually awarded had not yet been granted; it is understandable
that some reluctance on the part of the majority existed to approve
23 Certified Record, copy of the Land Development Plan
submitted by Vance Weber/Sprint Cellular to file No. 93-12-10A.
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94-1346 CIVIL TERM
a plan on the basis of an anticipatory variance. In. any event, the
fact that the anticipated variance has been received tends to
minimize the validity of this issue as a basis for continued
disapproval of the Plan.
A final reason articulated by the Board of Commissioners for
disapproval of Appellants' Plan was based on the location of the
proposed tower on land subject to subsidence/sinkholes, unsuitable
for development, pursuant to Section 220-11 of the Code. This
section, quoted heretofore, does provide a specific requirement or
criteria by which courts can review a finding of noncompliance.
Evidence tending to show the reasonable likelihood of a
collapse of the tower due to subsidence or sinkholes, and evidence
tending to show the unavailability of "special construction
procedures" to minimize such a risk, could, in view of the
proximity of the tower to a public road, constitute substantial
evidence in support of disapproval of the Plan on the basis of
Section 220-11. However, neither the Commissioners nor Appellants
had reason to anticipate the presentation of such evidence at the
Commissioners' meeting, because the condition suggested by the
Planning Commission in regard to this issue was not the
demonstration of a safe construction technique but the placement of
a notation on the Plan indicating a willingness to employ such a
technique where needed -- a condition met by Appellants by affixing
such a note to the Plan.
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94-1346 CIVIL TERM
For this reason, the record is not complete on the issue of
whether a basis exists for disapproval of the Plan under Section
220-11. In the interest of expediting the matter, the undersigned
judge will receive additional evidence on this issue alone at a
hearing to be scheduled by the following order of court.24
ORDER OF COURT
AND NOW, this ~ day of December, 1994, upon consideration
of Appellants' land use appeal, and for the reasons stated in the
accompanying Opinion, a hearing for the receipt of additional
evidence on the issue of conformity of Appellants' preliminary land
development plan with Section 220-11 of the Code of the Township of
Upper Allen is SCHEDULED for Friday, February 3, 1995, at 1:30
p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle,
Pennsylvania.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Hubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Appellants
24 See Act of July 31, 1968, P.L. 805, ~1005-A, as amended,
53 P.S. ~l1005-A (1994 Supp.).
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94-1346 CIVIL TERM
Stephen L. Grose, Esq.
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
Attorney for Appellee
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