Tuesday, August 7, 2012

Dimensional Variance Denied for the Construction of Communication Antennas

In re: Appeal of Towamencin Township, 2012 Pa. Commw. LEXIS 105, 55 Comm. Reg. (P & F) 909 (2012), petition for reargument denied, 2012 Pa. Commw. LEXIS 152 (2012).

By: Frank Kosir, Jr.

This matter addressed the issue of whether a property owner and cellular service provider were entitled to a dimensional variance for the construction of a silo onto which communication antennas were to be placed.  The Bechtel family (“Owners”) has held title to an 81.43-acre tract of farmland (“Property”) situated in Towamencin Township (“Township,”) Montgomery County, Pennsylvania, for more than two hundred years.  The Property is situated in the Township’s R-200 Residential Agricultural Zoning District (“District”) and is used as a residence and working dairy farm, one of only two remaining working dairy farms within the Township.  Along with a farmhouse, barn and other outbuildings, constructed on the Property are two grain silos, fifty-five feet and eighty feet in height.  These silos are insufficient to store all of the crops that the Owners need to feed their farm animals, resulting in their having to store additional crops in large temporary containers that occupy approximately two acres of tillable land.  In order to provide adequate space for crop storage, and to permit the modernization of their farm operations, the Owners sought to construct a new one hundred and thirty feet tall silo, a silo whose proposed height would far exceeded the sixty-five feet maximum height for structures in the District.

At the same time that the Owners sought to construct their new silo, AT & T, whose cellular service in the area was suffering from coverage gaps, was in search of existing tall structures in the Township upon which it could place antennas to improve coverage.  AT & T contacted the Owners, and proposed that they agree to construct a silo one hundred and twenty feet in height, which would then enable AT & T to place antennas less than ten feet in height on the roof of the silo, thereby remaining within the one hundred and thirty feet dimensional restriction for wireless telecommunication facilities set forth in the Township’s Zoning Code (“Code.”) The Owners agreed and the Owners and AT & T (“Applicants) applied for a variance to construct the one hundred and twenty feet high silo with antenna above.  The Township Zoning Hearing Board (“Board”) held a hearing at which several adjacent landowners appeared in support of the request.  The Board granted the Applicants’ requested relief and the Township appealed to the Montgomery County Court of Common Peas, contending that the granted relief constituted a use variance rather than a dimensional variance, and that the Applicants had failed to establish a hardship sufficient to warrant the granting of any variance.  The trial court, concluding that the Applicants sought nothing more than a variance from the height restrictions set forth in the Code, concluded that the Board’s decision constituted a reasonable use variance, and affirmed.

On appeal, our Commonwealth Court affirmed.  In issuing its ruling, the court noted that a variance request is properly granted where the requested relief is not contrary to the public interest and its denial would result in an unreasonable hardship upon the applicant.  In this instance, the proposed silo would not encroach into any set backs, and was in fact supported by numerous adjoining property owners.  Furthermore, the Code itself provides for communication antennas in the District and directs that, whenever possible, such antennas be placed on other facilities, whether new or existing.  For these reasons, the variance sought by the Applicants constituted nothing more than a dimensional variance and, as the requested variance would result in nothing more than the use of additional air space, the granting of the variance was not contrary to the public interest.  Furthermore, as the proposed silo would enable the Owners to modernize their farming operations, thereby enabling the dairy farm to remain economically competitive, their economic need for a new silo constituted a sufficient hardship to warrant the granting of the requested dimensional variance. 

For additional information on dimensional variance please contact Frank Kosir at fk@muslaw.com.

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