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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen P. Hawk, : Appellant : : v. : No. 1225 C.D. 2004 : Butler Township : Submitted: December 17, 2004 Zoning Hearing Board, : Bell Atlantic Mobile, Inc., : Butler Township and : Crown Atlantic Company, LLC. : BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: March 18, 2005 In this land use appeal, Kathleen P. Hawk (Objector), representing herself, asks whether the Butler Township Zoning Hearing Board (Board) erred in granting Bell Atlantic Mobile, Inc.'s (Bell Atlantic) request to remove three conditions previously attached to the grant of a special exception. By removing the challenged conditions, the Board essentially permitted Bell Atlantic to modernize its cellular communications tower. Concluding the Board properly granted Bell Atlantic's request to remove the conditions, we affirm. I. Prior Litigation In 1990, Bell Atlantic applied for a special exception to construct a cellular communications tower on a 34-acre parcel (Subject Property) located in an R-1 residential district in Butler Township. More specifically, Bell Atlantic sought approval to remove an existing tower located on the Subject Property, and to construct its tower. The Board approved Bell Atlantic's proposed tower as a "public utility installation," a use permitted by special exception in an R-1 district under the Butler Township Zoning Ordinance (zoning ordinance). The Board attached 10 conditions to its grant of the special exception. At issue here are the first three conditions: 1. The tower is limited to the use of [Bell Atlantic], the [owner of the Subject Property], and for public service use (i.e. police, fire, EMS, and local government). 2. A maximum of 25 antenna[e] (only five of which may be under the control of [the owner of the Subject Property]) of a whip or reflector type are permitted on the tower. 3. Maximum R.F. [radio frequency] output of all transmitter wattage to the antenna[e] will not exceed 2,700 watts. See Supplemental Reproduced Record (S.R.R.) at 3b. Several neighboring landowners, including Objector, appealed. Ultimately, this Court held the Board properly determined Bell Atlantic satisfied the "public utility" definition found in the zoning ordinance. Hawk v. Zoning Hearing Bd. of Butler Township (Hawk I), 618 A.2d 1087 (Pa. Cmwlth. 1992). Additionally, we rejected the neighboring landowners' claims that the proposed tower would harm the community, stating: Neither the [Board] nor the trial court were persuaded by the allegations raised by the [neighboring 2 landowners] concerning the proposed tower's detrimental effect on the community. The [Board] and the trial court accepted Bell Atlantic's medical evidence that the proposed tower would not endanger the public health, safety or welfare. ... Id. at 1090-91 (footnote omitted). Consequently, the Board's decision granting the special exception subject to the attached conditions prevailed. In July 1993, this decision became final when our Supreme Court denied the neighboring landowners' petition for allowance of appeal. See Hawk v. Zoning Hearing Bd. of Butler Township, 535 Pa. 625, 629 A.2d 1385 (1993). Bell Atlantic subsequently constructed its tower. Thereafter, the township amended its zoning ordinance. The amended ordinance deleted the "public utility" classification; added a definition for "commercial communications towers"; and prohibited construction of commercial communications towers in R-1 districts. Under the amended ordinance, such towers are only permitted in M-1 manufacturing districts. II. Application In May 1997, Bell Atlantic filed an application with the Board requesting removal of the first three conditions attached to the grant of the special exception. In support, Bell Atlantic asserted that since the grant of the special exception in 1990, significant changes in technology and business rendered these conditions inappropriate. 3 A hearing before the Board ensued. At the outset of the hearing, Counsel for Bell Atlantic asserted, to the extent the tower complied with Federal Communications Commission (FCC) regulations, Section 704 of the Federal Telecommunications Act of 1996 (Telecommunications Act), 47 U.S.C. §332, precluded the Board from considering the environmental effects of radio frequency emissions. After outlining this legal argument, Bell Atlantic presented the testimony of Herb Hungerman, its real estate and zoning manager (Bell Atlantic's Representative), who explained why removal of the 1990 conditions was appropriate. Specifically, Bell Atlantic's Representative testified the national demand for wireless service increased "ten-fold" since 1990, with a corresponding increase in the Butler Township area. R.R. at 39a. He testified Bell Atlantic required additional radio transmitters on its existing tower to handle the substantial increase in demand for wireless service. Bell Atlantic's Representative also testified, because of increased demand, Bell Atlantic needed to increase the wattage transmitted by each radio in order to continue to serve the geographic area. Bell Atlantic's Representative further stated that if the challenged conditions were removed, the existing tower could be used to accommodate antennae for other FCC-licensed providers who expressed interest in utilizing the tower. Notably, Bell Atlantic's Representative testified the proposed modifications required no structural changes to the tower. In opposition, several residents appeared and expressed concern through questions directed toward Bell Atlantic's Representative and counsel for 4 Bell Atlantic. Most of the questions related to whether Bell Atlantic's increased use of the tower would create any risk to public health and safety. Significantly, however, none of the residents, including Objector, submitted evidence indicating an increase in power output would impact public health or safety. Ultimately, the Board issued an opinion in which it made the following relevant findings: 6. [Bell Atlantic] requested that the first three conditions of the [special exception] be removed to allow [Bell Atlantic] to place or lease additional antenna[e] and transmitters and increase the maximum wattage output of all transmitters. 7. The operation of the tower is currently exempt from FCC regulations due to the type of transmissions/ power output and the distance above ground of the lowest antenna. 8. [Bell Atlantic's] uses of the transmission tower will be regulated ... as determined by the [FCC] at the direction of federal statutory law, in particular, the Telecommunications Act. 9. After approval of the [s]pecial [e]xception [in 1990] and construction of the subject tower, the [zoning ordinance] was amended. 10. The amended ordinance has a defined use of "Commercial Communications Tower" allowed as a [s]pecial [e]xception only in [m]anufacturing [d]istricts of the Township. 11. The subject tower is located in a R-1 [d]istrict. 12. The current use, or proposed expansion of use, of the subject tower has not been shown to be detrimental 5 to the Township and has not been shown to cause substantial harm or have an injurious impact on the neighborhood (except as alleged in the area of environmental effects, which this Board is prohibited from considering under Federal law). 13. The proposed expansion of use utilizes only the land already devoted to the use. 14. The proposed expansion of use is the same type of use as the previous use. Board Op., Findings of Fact (F.F.) Nos. 614. As a result, the Board determined Bell Atlantic's tower was a valid non-conforming use because it existed lawfully prior to the enactment of the amendment to the zoning ordinance that prohibited communications towers in residential districts. Further, the Board determined Bell Atlantic's proposed modifications constituted a permissible modernization of its non-conforming use. Thus, the Board granted Bell Atlantic's request to remove the three challenged conditions. The Board, however, attached nine new conditions to its approval, including a condition that requires Bell Atlantic to comply with FCC regulations. Objector appealed to the trial court.1 On appeal, the Butler County Court of Common Pleas (trial court) affirmed the removal of the three challenged conditions. Objector appealed to this 1 In addition to Objector's state land use appeal, Bell Atlantic filed an action in federal district court seeking to have the nine newly imposed conditions declared invalid because they violated the Telecommunications Act. Thereafter, Hawk's state land use appeal was removed to federal court and consolidated with Bell Atlantic's suit. After a bench trial, the federal court determined Bell Atlantic's claims were not ripe for review, and remanded Objector's claims to the trial court. See Bell Atl. Mobile, Inc. v. Zoning Bd. of Butler Township, 138 F.Supp.2d 668 (W.D. Pa. 2001). These nine new conditions are not at issue here. 6 Court,2 asserting the Board erred in: (i) determining Bell Atlantic's use of the Subject Property is a valid non-conforming use; (ii) failing to determine Bell Atlantic's application to remove the conditions is barred by res judicata; and (iii) applying a provision of the Telecommunications Act to exclude her testimony concerning the health risks posed by radio frequency emissions. Objector also contends the Board's removal of the challenged conditions created a "de facto spot zone." In zoning cases it is well-settled that the Board is the fact finder, with exclusive province over matters of credibility and weight to be afforded the evidence. Manayunk Neighborhood Council v. Zoning Bd. of Adjustment of the City of Phila., 815 A.2d 652 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 574 Pa. 777, 833 A.2d 145 (2003). This Court will not engage in fact finding or disturb the Board's credibility determinations on appeal. Id. III. Removal of Conditions Objector first contends Bell Atlantic's use of the Subject Property does not constitute a valid non-conforming use because Bell Atlantic did not prove it constructed its tower before the enactment of the amended ordinance. She further argues Bell Atlantic's proposed expansion is not a reasonable expansion of a non-conforming use; rather, it is a new and different use. As a result, Objector 2 Where, as here, the trial court received no additional evidence, our review is limited to determining whether the Board committed an abuse of discretion or an error of law. Warner Jenkinson Co., Inc. v. Zoning Hearing Bd. of Township of Robeson, 863 A.2d 139 (Pa. Cmwlth. 2004). 7 asserts, the Board erred in granting Bell Atlantic's application to modernize its tower by removing the challenged conditions. We need not decide whether the tower is a valid non-conforming use. Indeed, Bell Atlantic did not advance this theory. Rather, Bell Atlantic sought removal of the conditions based on its assertion that changes in business and technology rendered the conditions inappropriate. As a result, we consider whether the Board properly granted the relief sought, i.e., removal of the challenged conditions. We may affirm under a different rationale, where the result is correct and the basis on which we affirm is clear on the record. Rabenold v. Zoning Hearing Bd. of Borough of Palmerton, 777 A.2d 1257 (Pa. Cmwlth. 2001); Reynolds v. Zoning Hearing Bd. of Abington Township, 578 A.2d 629 (Pa. Cmwlth. 1990). In Ford v. Zoning Hearing Bd. of Caernarvon Township, 616 A.2d 1089 (Pa. Cmwlth. 1992), this Court articulated the standard by which to analyze whether removal of conditions attached to land use approvals is appropriate. There, the Court considered a request to remove a condition that a subdivision not be further divided. This Court adopted the analysis of Robert S. Ryan as set forth in his treatise Pennsylvania Zoning Law and Practice, §9.4.20, stating: Thus, if the landowner establishes (1) a change in circumstance that make[s] the condition inappropriate, and (2) that the grant of relief will not injure the public, the board should grant the landowner relief from the condition. 8 Ford, 616 A.2d at 1092. Applying this analysis, we determined the landowner's re-subdivision request would result in compliance with the zoning ordinance's dimensional requirements and, therefore, would not injure the public. Thus, we determined the landowner established a change in circumstance that rendered the condition inappropriate. 1. Applying the Ford analysis here, we first examine whether Bell Atlantic established a "change in circumstance" that renders the conditions inappropriate. In that regard, Bell Atlantic's application was predicated on its need to accommodate a substantial increase in demand for wireless service. By way of brief summary, Bell Atlantic's Representative described the dramatic increase in demand for wireless service since 1990 required several modifications to the existing tower. He further explained, based on the increased demand, several FCC-licensed providers expressed interest in locating their equipment at the tower. In addition, he testified Bell Atlantic's ongoing transition from analog to digital technology necessitated an increase in power. These changes in business and technology constitute a change in circumstance that renders continued imposition of the conditions inappropriate. As this evidence was uncontested, Bell Atlantic proved a change in circumstance that rendered the challenged conditions inappropriate. Therefore, the first element of the Ford analysis is satisfied. 9 2. As to the second element of the Ford analysis, i.e., no resultant injury to the public, the Board determined: The current use, or proposed expansion of use, of the [S]ubject [P]roperty has not been shown to be detrimental to the Township and has not been shown to cause substantial harm or have an injurious impact on the neighborhood (except as alleged in the area of environmental effects, which this Board is prohibited from considering under Federal law). F.F. No. 12 (emphasis added). The only alleged harm here concerns the perceived health risk resulting from the tower's radio frequency emissions. The Telecommunications Act vests exclusive authority in the FCC to regulate wireless service facilities with regard to the health risks associated with radio frequency emissions. See 47 U.S.C. §332(c)(7)(B)(iv). As such, if the operator of a cellular communications tower complies with applicable FCC regulations, state and local land use authorities may not take action based on a perceived health risk caused by radio frequency emissions. Id. Here, Bell Atlantic stipulated the modifications to the tower would comply with FCC regulations concerning radio frequency emissions. R.R. at 21a- 22a. Further, neither Objector nor any other neighboring landowner submitted any evidence that the proposed changes to the tower would impact public health or safety. Therefore, the second element of Ford is satisfied. Consequently, we discern no error from the Board's decision to remove the challenged conditions. 10 IV. Res Judicata Objector next asserts Bell Atlantic's application to remove the challenged conditions is barred res judicata because Bell Atlantic did not appeal the Board's decision to impose the conditions it now challenges. We disagree. The doctrine of res judicata is applied sparingly in zoning matters because the need for flexibility outweighs the risk of repetitive litigation. Domeisen v. Zoning Hearing Bd. of O'Hara Township, 814 A.2d 851 (Pa. Cmwlth. 2003). The application of res judicata requires four elements: (1) identity of the thing sued for, (2) identity of the cause of action, (3) identity of the parties to the action, and (4) identity of the quality in the persons for or against whom the claim is made. Id. With regard to the removal or modification of conditions attached to the grant of land use approval, it is clear a landowner may seek relief from a condition imposed in a prior proceeding where the landowner can demonstrate a change in circumstance. Ford. See also Robert S. Ryan, 2 Pennsylvania Zoning Law and Practice §9.4.20 (1997 ed.). Indeed, this Court specifically recognizes conditions attached to the grant of a special exception can be the subject of a later application to modify those conditions. Bonner v. U. Makefield Township, 597 A.2d 196 (Pa. Cmwlth. 1991). Importantly, failure to appeal a condition attached to a land use approval does not preclude a later application to modify it. In re Appeal of Gillies Corp., 387 A.2d 1358 (Pa. Cmwlth. 1978) (holding failure to 11 appeal condition attached to grant of special exception does not bar later application to broaden or extend condition). Here, Bell Atlantic's failure to appeal the Board's imposition of the challenged conditions does not bar its subsequent application seeking removal of those conditions. Ford; Gillies Corp. Therefore, Objector's assertion fails. V. Health Risk Issues A. Objector also argues the Board erred in determining the Telecommunications Act precluded it from considering the risks associated with the tower's radio frequency emissions. Again, we disagree. As we noted in Bell Atl. Mobile Sys., Inc. v. Zoning Hearing Bd. of the Township of O'Hara, 676 A.2d 1255 (Pa. Cmwlth. 1996), Section 704 of the Telecommunications Act, provides in pertinent part: No State or local government or instrumentality thereof may regulate the placement, construction and modification of personal wireless service facilities on the basis of the environmental effects of radio-frequency emissions to the extent that such facilities comply with the [FCC] regulations concerning emissions. 47 U.S.C. §332(c)(7)(B)(iv).3 3 Notably, the term "environmental effects" and "health concerns" are used interchangeably for purposes of this section of the Telecommunications Act. See, e.g., Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Township, 181 F.3d 403 (3d. Cir. 1999); Omnipoint Communications, Inc. v. City of Scranton, 36 F.Supp.2d 222 (M.D. Pa. 1999). See (Footnote continued on next page...) 12 This provision precludes a zoning board from considering the alleged risks posed by radio frequency emissions. See Kapton v. Bell Atlantic Nynex Mobile, 700 A.2d 581, 583 (Pa. Cmwlth. 1997) ("[w]ith regard to the issue concerning the alleged risk posed by radio frequency transmissions, Appellant concedes that the [Telecommunications Act] preempts the field."); Westinghouse Elec. Corp. v. Council of the Township of Hampton, 686 A.2d 905 (Pa. Cmwlth. 1996) (47 U.S.C. §332(c) prohibits regulation of cellular towers based on apprehensions concerning radio emissions if equipment complies with FCC regulations). See also Cellular Phone Taskforce v. Fed. Communications Comm'n, 205 F.3d 82, 88 (2d. Cir. 2000) (Telecommunications Act "preempts state and local governments from regulating ... personal wireless service facilities on the basis of the health effects of radio frequency radiation where the facilities would operate within levels determined by the FCC to be safe. ..."); In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litigation, 216 F.Supp.2d 474 (D. Md. 2002) (stating local government may not require compliance with radio frequency emissions or exposure limits stricter than those set by FCC, and may not restrict facility's operation based on radio emissions or any other cause). (continued...) also Carol R. Goforth, A Bad Call: Preemption of State and Local Authority to Regulate Wireless Communication Facilities on the Basis of Radio Frequency Emissions, 44 N.Y.L. Sch. L. Rev. 311, 312 (2001) ("`environmental effects' is a euphemism which was apparently intended to encompass any impact that radio-frequency emissions may have on human health ...."). 13 Responding to Objector's claims that the Board erred in failing to consider evidence concerning the alleged risks of radio frequency emissions, the trial court stated: At the hearing on this matter, [Bell Atlantic] [stipulated] that it would be in compliance with all applicable FCC regulations. Therefore, based on the record and the applicable section of the Act, this Court [finds], that to the extent [Objector] wanted to testify as to health and environmental effects of the tower[']s emissions, the Board did not err ... by disallowing her testimony. Tr. Ct. Slip Op., 7/19/04 at 6. Because the Telecommunications Act precludes the Board from considering health risks posed by radio frequency emissions, and because Bell Atlantic stipulated it would comply with all applicable FCC regulations, we agree the Board properly refrained from considering these effects. B. Objector further asserts the Board deprived her of her right to due process by excluding her testimony concerning the health effects of radio frequency emissions. This argument fails. The fundamental components of procedural due process are notice and an opportunity to be heard. Pessolano v. Zoning Bd. of Adjustment of the City of Pittsburgh, 632 A.2d 1090 (Pa. Cmwlth. 1993). Further, Section 908(5) of the 14 Pennsylvania Municipalities Planning Code (MPC)4 requires all parties "be afforded the opportunity to respond and present evidence and argument and cross- examine adverse witnesses on all relevant issues." Notably, Section 908(6) of the MPC states, in proceedings before the Board, "formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded." 53 P.S. §10908(6) (emphasis added). At the hearing before the Board, Objector repeatedly voiced her concerns about the health effects of the tower's radio frequency emissions. In response, the Board stated: The United States Congress has passed [the] Telecommunications Act, and it is the decision of this Board [that] we are not in a position to do anything but comply with what it clearly states. It is our ruling that any testimony about - - I'll quote directly from the act, "placement and construction [or] modifications of original wireless services facilities on the basis of environmental effects of radio emissions." Anything of that nature is irrelevant to our consideration .... R.R. at 104a-105a. Thus, the Board excluded further testimony concerning the alleged health risks posed by the emissions on the grounds such testimony was irrelevant. Because the Telecommunications Act prohibits local authorities from considering the health effects posed by radio frequency emissions, see 47 U.S.C. 4 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(5). 15 §332(c)(7)(B)(iv), we discern no error from the exclusion of this testimony. 53 P.S. §10908(6). The Board provided Objector an opportunity to cross-examine Bell Atlantic's witnesses, R.R. at 58a63a, and to present her own witnesses. R.R. at 86a97a. Additionally, the Board permitted Objector to present legal argument, 80a-89a; 102a-107a, and to submit a post-hearing brief. R.R. at 121a-122a. As such, the Board afforded Objector all process due.5 VI. Spot Zone As a final issue, Objector argues the removal of the challenged conditions creates a "de facto spot zone" because it permits a communications tower in an area zoned for residential use. 5 Advancing another due process argument, Objector asserts the Board solicitor demonstrated bias during the proceedings, which resulted in a denial of her right to due process. Specifically, she argues the solicitor had a personal interest in granting Bell Atlantic's request because, if the Board permitted other wireless service providers to use the tower, it would obviate the need for a tower in his neighborhood. This argument fails for two reasons. First and foremost, Objector failed to raise this issue in her Statement of Matters Complained of on Appeal; therefore, the issue is waived. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998); Plank v. Monroe County Tax Claim Bureau, 735 A.2d 178 (Pa. Cmwlth. 1999). Second, we recognize due process requires a local governing body in the performance of its quasi-judicial functions to avoid even the appearance of bias or impropriety. Prin v. Council of Municipality of Monroeville, 645 A.2d 450 (Pa. Cmwlth. 1994). Therefore, a showing of actual bias is unnecessary in order to assert a cognizable due process claim; rather, the mere potential for bias or the appearance of non-objectivity may be sufficient to constitute a violation of that right. Newtown Township Bd. of Supervisors v. Greater Media Radio Co., 587 A.2d 841 (Pa. Cmwlth. 1991). Here, however, we agree with the trial court that Objector failed to produce any evidence of bias on the part of the solicitor with regard to the issues presented and, as a result, we agree Objector's argument is "tenuous and based largely on speculation." Trial Court Slip Op., 5/10/04 at 20. 16 In Cleaver v. Bd. of Adjustment of Tredyffrin Township, 414 Pa. 367, 200 A.2d 408 (1965), our Supreme Court explained the following principles with regard to spot zoning: Zoning is a legislative division of a community into areas or districts, in each of which only certain designated uses of land and/or buildings are permitted. Generally speaking, spot zoning is the arbitrary and unreasonable classification and zoning of a small parcel of land. This small parcel of land is usually set apart or carved out of a surrounding or a large neighboring tract, with no reasonable justification for the differential zoning. Id. at 378, 200 A.2d at 415 (emphasis added). Here, the Board's subsequent removal of the challenged conditions based on a change in circumstance cannot constitute spot zoning. Its action did not alter the zoning classification of the Subject Property or amend the zoning ordinance. Therefore, this argument fails. Based on the foregoing, we affirm.6 ROBERT SIMPSON, Judge 6 Objector further contends, by permitting Bell Atlantic to construct the tower and transmit radio frequencies across her property, the Board interfered with her right to enjoy her property. We disagree. In the current round of litigation, the sole issue before the Board concerned whether removal of the attached conditions was appropriate, not whether Bell Atlantic had a right to use the existing tower. Indeed, in Hawk I this Court determined the Board properly granted Bell Atlantic permission to use the tower. Because Objector's argument relates to Bell Atlantic's right to use the tower, an issue decided long ago, this argument fails here. 17 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen P. Hawk, : Appellant : : v. : No. 1225 C.D. 2004 : Butler Township : Zoning Hearing Board, : Bell Atlantic Mobile, Inc., : Butler Township and : Crown Atlantic Company, LLC. : O R D E R AND NOW, this 18th day of March, 2005, the order of the Court of Common Pleas of Butler County is AFFIRMED. ROBERT SIMPSON, Judge
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