Tower Access Group may be able to develop Fayette Co. cell phone tower after appeals court rules in its favor

By Charmaine Little | Aug 13, 2018

PHILADELPHIA  — Tower Access Group may be able to move forward with its plan to build a Verizon Wireless cell phone tower, now that the Commonwealth Court of Pennsylvania has supported its appeal.

The court's ruling on July 30 reversed a lower court decision that upheld a zoning board decision to revoke approval of the cell phone tower.

Judge Patricia A. McCullough authored the opinion while President Judge Mary Hannah Leavitt and Judge Christine Fizzano Cannon also heard the case. 

Tower Access Group LLC (TAG) filed the appeal after the Court of Common Pleas of Fayette County confirmed a ruling from the South Union Township Zoning Hearing Board that denied TAG’s request to develop a cell phone tower in the township.

Mary Hannah Leavitt   Widener Law Commonwealth

South Union’s Board of Supervisors revoked TAG’s zoning certificate in July 2016 because the proposed tower was in an R-1 Zone. This meant it was only allowed to be used for residents and businesses that would service the community. 

Still, TAG’s tower was considered a public service facility that could be permitted through a special exception. TAG appealed the revocation with the zoning hearing board and asked for a special exception status.

After much testimony from Verizon employees, TAG workers, technicians, objectors, and nearby residents, the zoning board denied the request. The board pointed out that Verizon Wireless users didn’t testify that they had bad service in the area, indicating the need for the tower. 

It also said the application for the zoning certificate lacked a required signature, so it wasn’t posted properly at the church nearby. TAG appealed the board’s decision with the trial court, which also affirmed the revocation for the same reasons as the board.

In its appeal with the current court, TAG said the lower court abused its discretion when it said TAG didn’t fulfill the burden of proof in section 602.4 of the Township Ordinance, which concerned the special exception request.

The appeals court agreed with TAG that the Board abused the burdens of proof argument regarding special exception. TAG pointed out section 602.4 of the Ordinance in question only requires general criteria and doesn’t put the responsibility on TAG or the applicant concerning detrimental effects, public safety, and health. Instead, it calls for general requirements like the proposed building to not be dangerous, inconvenient, or interfere with traffic.

When it comes to substantial evidence, the appeals court said while the Township did provide testimony against TAG, it wasn’t enough to vindicate its decision to deny TAG its special exception request. Tit also pointed out TAG’s witness, a civil engineer, said he didn’t foresee the tower interfering with traffic in any way. Plus, the construction time would only be up to six weeks. After that, technicians would only come to the tower once a month.

The appeals court also said the Township and the objectors to the zoning certificate failed to prove with testimony that the tower would interfere with car and pedestrian traffic.

As for the testimony from residents, the appeals court said one neighbor only said he was afraid his property value would decrease because of aesthetics, which isn’t enough to prove a detrimental impact.

The appeals court remanded the case back to trial court and gave it instruction to remand to the board for an updated ruling.

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