         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allegheny Tower Associates, LLC,         :
                       Appellant         :
                                         :
              v.                         :   No. 2085 C.D. 2015
                                         :   Argued: December 12, 2016
City of Scranton Zoning Hearing          :
Board                                    :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION
BY JUDGE SIMPSON                         FILED: January 10, 2017


              Allegheny Tower Associates, LLC (Applicant) asks whether the Court
of Common Pleas of Lackawanna County (trial court) erred in affirming a decision
of the City of Scranton Zoning Hearing Board (ZHB), which, based on a split
decision, technically denied Applicant’s request for a special exception to construct
a monopole (commercial communications) tower. Applicant asserts the ZHB erred
in denying its special exception request where it presented sufficient evidence to
show its entitlement to special exception approval under the City of Scranton
Zoning Ordinance (zoning ordinance). Upon review, we reverse.


                                  I. Background
              In May 2015, Applicant filed an application with the ZHB seeking a
special exception to construct a monopole communications tower at 2630 Winfield
Avenue in Scranton (property). The property is located in a Light Industrial
District (I-L).
                The ZHB held a hearing on the application.             Attorney Timothy
Siegfried appeared with his client, Joseph Fitzsimmons of Allegheny Tower
Associates, Inc., on Applicant’s behalf. Fitzsimmons proposed to construct a 140-
foot high monopole communications tower on the property, which would replace
an existing 120-foot high guyed tower. Fitzsimmons testified: the property is
mostly surrounded by commercial or industrial uses; the proposed use would
comply with the zoning ordinance’s setback provisions; Applicant would provide
proper screening; and, the proposed use would not disturb the neighborhood.
Further, the proposed tower would not be lighted, and it would comply with all
Federal Communications Commission regulations.


                James Walsh testified in opposition to Applicant’s proposed
communications tower. He explained the existing guyed tower is no more than
two feet in diameter, and the new tower would be approximately eight feet in
diameter. Daryl Palmer also testified in opposition to Applicant’s proposed tower,
stating it would be unsightly to residential neighbors (in a near-by zone) and
dangerous if it fell on an adjoining gas station.


                At the conclusion of the hearing, the four-member ZHB reached a
split decision, resulting in a deemed denial of Applicant’s special exception
application.1




       1
         See, e.g., Giant Food Stores, Inc. v. Zoning Hearing Bd. of Whitehall Twp., 501 A.2d
353 (Pa. Cmwlth. 1985).



                                             2
                 The ZHB subsequently issued a written decision in which it explained
that under Section 306(B) of the zoning ordinance, a commercial communications
tower is permitted by special exception in an I-L zoning district. Further, Section
119(C) of the zoning ordinance states that the ZHB shall approve any proposed
special exception if it finds adequate evidence exists that the proposed use will
satisfy: (1) all standards listed in Section 118(C)(4) of the zoning ordinance; (2) the
specific standards for the proposed use in Sections 402 and 403 of the zoning
ordinance; and, (3) all other applicable zoning ordinance requirements.


                 The ZHB explained that Section 118(C)(4) addresses issues relating to
traffic, safety, storm water management and impact on the neighborhood. In
particular, Section 118(C)(4)(e) states the proposed use “will not significantly
negatively affect the desirable character of an existing residential neighborhood.”
Id.2

       2
           In addition, Section 402(13) of the zoning ordinance states:

                 13. Communications Antennae, Commercial.

                 a. Any such antenna that is attached to an existing business
                 building or a nonresidential buildings [sic] of more than 5 stories
                 shall not be regulated by this Section, and instead is permitted by
                 right without additional regulations under this Ordinance. See
                 requirements of the City Building Code.

                 b. A freestanding antenna shall be setback a minimum distance
                 equal to half its height from all lot lines and existing street right-of-
                 way lines.

                 c. The base of a freestanding antennae shall be surrounded by a
                 secure fence with a minimum height of 8 feet.

                 d. Any freestanding antennae higher than 50 feet that is within 100
                 feet of a public street or dwelling shall be buffered along that street
(Footnote continued on next page…)

                                                    3
             Ultimately, by a two-to-two vote, the ZHB technically denied
Applicant’s special exception application because the proposed tower did not meet
the standard set forth in Section 118(C)(4)(e) of the zoning ordinance, that the
proposed use will not significantly negatively affect the desirable character of an
existing residential neighborhood. Applicant appealed to the trial court.


             Without taking additional evidence, the trial court issued an order
affirming the ZHB. Applicant appealed to this Court, and the trial court directed it
to file a concise statement of the errors complained of on appeal, which it did.


             In a subsequently filed opinion pursuant to Pa. R.A.P. 1925(a), the
trial court concluded the ZHB’s determination that Applicant did not prove its
proposed use would not significantly negatively affect the desirable character of an
existing residential neighborhood was supported by substantial evidence. To that
end, the ZHB credited the testimony of the objectors (Palmer and Walsh) that the
proposed tower would have a substantial negative impact on the existing
residential neighborhood over Fitzsimmons’ contrary testimony.


             The trial court also rejected Applicant’s argument that the trial court
erred in upholding the ZHB’s decision based on Conclusion of Law No. 15, which
states: “By a vote of 2-2, the [a]pplication for a [s]pecial [e]xception was denied
finding the proposed tower would not meet the standards of [Section 118


(continued…)

             or lot line (except at the driveway crossing) by evergreen screening
             or preserved woods meeting the requirements of Section 803.



                                              4
(C)(4)(e)].” ZHB Op., 6/15/15, Concl. of Law No. 15. In response, the trial court
explained the hearing transcript clearly showed the ZHB voted two-to-two. See
ZHB Hr’g, 6/10/15, at 54-55. The trial court noted that a tie vote is deemed a
denial under applicable law. The trial court further stated that, in its findings of
fact and conclusions of law, the ZHB adequately detailed its reasons for denying
the requested special exception. This matter is now before us for disposition.


                                     II. Discussion
                                     A. Contentions
              On appeal,3 Applicant begins by pointing out that a special exception
applicant has the duty to present evidence and the burden of persuading the ZHB
that its proposed use meets the ordinance’s objective requirements. MarkWest
Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 102 A.3d 549
(Pa. Cmwlth. 2014), appeal denied, 113 A.3d 281 (Pa. 2015) (citing Morrell v.
Zoning Hearing Bd. of Borough of Shrewsbury, 17 A.3d 972, 975 (Pa. Cmwlth.
2011); Greaton Props. v. Lower Merion Twp., 796 A.2d 1038, 1045-46 (Pa.
Cmwlth. 2002)). Here, Applicant contends, it satisfied this burden by presenting
evidence that its proposed tower would comply with all of the zoning ordinance’s
requirements. Once an applicant meets this burden, “a presumption arises that the
use is consistent with the health, safety and general welfare of the community.” Id.
at 553. The burden then shifts to the objectors to present evidence and persuade
the ZHB that the proposed use will have a generally detrimental effect. Id.



       3
         Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).



                                             5
             Here, Applicant maintains, the objectors did not satisfy their burden of
showing the proposed tower would be detrimental to public health, safety and
welfare. Applicant argues that, in attempting to satisfy this burden, the objectors
produced no sufficient, credible evidence; instead, they relied solely on speculation
and unfounded personal opinions. Because Applicant proved its proposed tower
would comply with all zoning ordinance requirements, and the objectors did not
show the tower would have a detrimental effect, Applicant asserts, the ZHB should
have approved the special exception application.


             Applicant argues the ZHB’s findings and conclusions state, without
explanation, that the proposed tower would not meet the standards of Section
118(C)(4)(e) of the zoning ordinance, which requires that a proposed use “not
significantly negatively affect the desirable character of an existing residential
neighborhood.” Applicant contends the ZHB’s findings and conclusions offer no
explanation or analysis as to how the ZHB reached this conclusion. Further,
according to Applicant, there is nothing in the transcript to support any such
determination.


             Applicant asserts that, pursuant to Section 306(B) of the zoning
ordinance, a commercial communications tower, like the proposed tower, is
permitted by special exception in the I-L zoning district. Section 119(C) of the
zoning ordinance states that the ZHB shall approve any proposed special exception
if it finds adequate evidence that the proposed use will meet: (1) all standards listed
in 118(C)(4) of the zoning ordinance; (2) specific standards for the proposed use
listed in Sections 402 and 403 of the zoning ordinance; and, (3) all other applicable



                                          6
zoning ordinance requirements. Applicant notes Section 118(C)(4) of the zoning
ordinance discusses additional criteria that must be met prior to approval of special
exception requests. Applicant then details the record evidence that it contends
shows its proposed tower satisfies all of these criteria.


                Applicant also maintains the record lacks substantial evidence that its
proposed tower would substantially affect the health, safety and welfare of the
community. Applicant argues that at the ZHB hearing, after Applicant presented
evidence to establish the proposed tower met the zoning ordinance’s objective
requirements, two objectors (Walsh and Palmer) testified and expressed their
concerns about the proposed tower. Reproduced Record (R.R.) at 215a-226a.


                Notwithstanding the testimony of these objectors, Applicant contends,
the law is clear that objectors to a special exception application cannot meet their
burden by merely speculating as to possible harm, but instead must show a “high
degree of probability that the proposed use will substantially affect the health,
safety and welfare of the community.” MarkWest, 102 A.3d at 570 (citation
omitted). “More specifically, objectors’ evidence must show a high probability
that the use will generate adverse impacts not normally generated by this type of
use ….” Id. (citation omitted). Here, Applicant argues, the objectors did not meet
this burden.


                The ZHB4 responds that the only issue to be decided by it, as the trier
of fact, was whether or not the proposed communications tower would

      4
          Only the ZHB filed a brief in opposition to Applicant’s appeal to this Court.



                                                 7
“significantly negatively affect the desirable character of the existing residential
neighborhood,” under 118(C)(4)(e) of the zoning ordinance.
             The ZHB notes it heard testimony from Applicant, who stated no
negative affect on the neighborhood would occur, and from two neighbors, Walsh
and Palmer, who testified the proposed tower would negatively affect the
neighborhood. Walsh testified he owns a car lot adjacent to the proposed tower.
He stated the existing tower is a guyed tower like an old ham radio tower. The
new tower would be four to five times wider and 140 feet in height. He explained
that comparing the old tower to the proposed tower is like comparing a toothpick
to a telephone pole. For his part, Palmer explained he lives across the street from
the proposed tower. Like Walsh, Palmer worried that if the tower fell, it could fall
on the adjacent gas station. Palmer also stated the proposed tower would detract
from the neighborhood because he would be able to see it from his front lawn.


             The ZHB maintains that, as trier of fact, it heard this testimony, and it
was certainly within its purview to make the decision it did, i.e., that the new
communications tower would negatively affect the residents in the neighborhood.
The ZHB argues it did not abuse its discretion in arriving at that conclusion, and it
applied the correct law (Section118(C)(4)(e) of the zoning ordinance). Thus, it did
not commit an error at law.


             In sum, the ZHB contends, based on the testimony presented, the trial
court did not err in finding the ZHB did not abuse its discretion or commit an error
of law in denying the special exception request.        A reasonable person could
conclude the testimony of Walsh and Palmer was credible and the proposed tower



                                          8
would significantly negatively affect the desirable character of existing residential
neighbors. Thus, the ZHB asserts, this Court should dismiss Applicant’s appeal.


                                    2. Analysis
             A special exception is neither special nor an exception, but a use
expressly contemplated that evidences a legislative decision that the particular type
of use is consistent with the zoning plan and presumptively consistent with the
health, safety and welfare of the community. Greth Dev. Grp., Inc. v. Zoning
Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth. 2007). Further, as
Robert S. Ryan explains:

             Zoning boards often hear protestants argue that an
             applicant for a special exception should be required to
             observe the law as set forth in the zoning ordinance.
             That argument is appropriate in an application for a
             variance, but not in a case involving a special exception.
             The applicant for an exception is following the zoning
             ordinance. His application is one envisioned by the
             ordinance and, if the standards established by the
             ordinance are met, his use is one permitted by its express
             terms.

Robert S. Ryan, PENNSYLVANIA ZONING LAW             AND   PRACTICE, §5.1.1 (2001)
(emphasis in original).


             An applicant for a special exception has both the duty of presenting
evidence and the burden of persuading the ZHB that its proposed use satisfies the
zoning ordinance’s objective requirements for the grant of a special exception.
Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002). Once
the applicant meets its burden of proof and persuasion, a presumption arises that it


                                         9
is consistent with the health, safety and general welfare of the community. Id. The
burden then normally shifts to the objectors to present evidence and persuade the
ZHB that the proposed use will have a generally detrimental effect on health,
safety and welfare. Id. The evidence presented by the objectors must show a high
probability that the use will generate adverse impacts not normally generated by
this type of use, and that these impacts will pose a substantial threat to the health
and safety of the community. Id.


             In Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth.
1980), this Court outlined the rules concerning “initial evidence presentation duty
(duty) and persuasion burden (burden) in special exception cases” as follows:

             Specific requirements, e. g., categorical definition of the
             special exception as a use type or other matter, and
             objective standards governing such matter as a special
             exception and generally:

                   The applicant has both the duty and the burden.

             General detrimental effect, e. g., to the health, safety and
             welfare of the neighborhood:

                   Objectors have both the duty and the burden; the
             ordinance terms can place the burden on the applicant but
             cannot shift the duty.

             General policy concern, e. g., as to harmony with the
             spirit, intent or purpose of the ordinance:

                    Objectors have both the duty and the burden; the
             ordinance terms cannot place the burden on the applicant
             or shift the duty to the applicant.

Id. at 912-13 (underlined emphasis added).



                                         10
            Here, the ZHB denied Applicant’s special exception application based
solely on Section 118(C)(4)(e), which states:

            The [ZHB] shall approve any proposed [special
            exception] if [it] find[s] adequate evidence that the
            proposed use will ….

                                      ****

                   4. Comply with all of the following standards:

                                      ****

                          e. Neighborhood. Will not significantly
                   negatively affect the desirable character of an
                   existing residential neighborhood.

Id. Although not entirely clear from the ZHB’s decision in support of a deemed
denial, it appears the ZHB based its determination on the following two factual
findings:

            6. James Walsh spoke against the tower. He stated the
            present [guyed] tower is no more than 2 feet in diameter
            and the new tower would be about 8 feet in diameter.

            7. Daryl Palmer also spoke against the tower stating it
            would be unsightly to the residential neighbors and
            dangerous if it fell on the adjoining gas station.

ZHB Op., Findings of Fact Nos. 6, 7. Although the testimony of Walsh and
Palmer supports the ZHB’s findings, these findings are insufficient to justify the
ZHB’s denial of Applicant’s special exception application.


            To that end, where, as here, the terms of an ordinance have not
expressly placed the burden of persuasion regarding general detrimental effects to


                                        11
the health, safety and welfare on an applicant, the applicant has the burden of
persuasion only as to specific requirements, while objectors have the burden as to
all general detrimental effects.      See Marquise Investment, Inc. v. City of
Pittsburgh, 11 A.3d 607 (Pa. Cmwlth. 2010). Thus, an applicant for a special
exception need only prove compliance with the specific, objective special
exception criteria set forth in the zoning ordinance. Id.


             Here, the ZHB did not determine that Applicant failed to satisfy any
of the specific, objective special exception criteria in the zoning ordinance.
Indeed, in its brief to this Court, the ZHB explains, “the only issue to be decided by
the trier of fact in this [a]pplication, which is the [ZHB], is whether or not the
proposed antenna will or will not ‘significantly negatively affect the desirable
character of the existing residential neighborhood,’ under 118.C.4.e [of the zoning
ordinance].” Br. of Appellee, City of Scranton Zoning Hearing Board, at 10.


             Further, because Section 118(C)(4)(e) relates to general detrimental
effects to the health, safety and welfare of the neighborhood and because the
zoning ordinance does not clearly place the burden regarding this criterion on a
special exception applicant, the objectors bore both the initial evidence
presentation duty and the persuasion burden. Bray. Additionally, the law is clear
that the objectors cannot meet their burden by merely speculating as to possible
harm. Marquise Investment.


             To satisfy their burden, the objectors had to show, to a high
probability, that the proposed use would generate adverse impacts not normally



                                         12
generated by this type of use, and that those impacts would pose a substantial
threat to the health and safety of the community. Oasis v. Zoning Hearing Bd. of
S. Annville Twp., 94 A.3d 457 (Pa. Cmwlth. 2014). This is particularly true here
given that Section 118(C)(4)(e) of the zoning ordinance requires the ZHB to
consider whether the proposed use will significantly negatively affect the desirable
character of an existing residential neighborhood. Testimony based on specific past
experiences can satisfy this burden, but bald assertions, personal opinions and
speculation will not. Oasis.


             As Robert S. Ryan illustrates, “[p]roof that goes no further than to
establish (for example) that there are residences close to a proposed gasoline
station is insufficient, for to permit a denial on that basis would be to overrule the
legislative judgment reflected in zoning.” Robert S. Ryan, Pennsylvania Zoning
Law & Practice, §5.3.4 (rev. 2003).


             Here, before the ZHB, the objectors (Palmer and Walsh) testified to
the following concerns: (1) existing problems with flooding in the area of the
proposed tower; (2) that there was a possibility the proposed tower could fall onto
an adjacent gas station; (3) that the proposed tower would cause a potential
decrease in property values; and, (4) that the proposed tower created aesthetic
concerns.   Our review of the ZHB’s hearing transcript reveals the objectors’
concerns were based on bald assertions, personal opinions and speculation. See
R.R. at 215a-226a. Thus, the objectors’ testimony did not show a high probability
that the proposed tower would generate adverse impacts not normally generated by
a commercial communications tower.



                                         13
             More specifically, although the objectors expressed general concerns
over flooding in the area, these concerns related to pre-existing flooding issues.
Indeed, the objectors offered no clear explanation as to how the proposed tower
would exacerbate those issues. This is not surprising in light of the fact that
Applicant’s proposal does not entail an increase in the existing impervious surface
at the property.    R.R. at 209a-210a.      Further, in response to the objectors’
testimony on this point, Applicant’s representative testified that construction of the
tower would not increase any existing flooding issues in the area. R.R. at 227a,
231a-32a. And, most importantly, the ZHB made no finding that the proposed
tower would create or intensify any flooding issues.


             Further, the objectors’ testimony regarding the chance the proposed
tower could fall was based purely on speculation, which the objectors did not even
attempt to substantiate.   See R.R. at 218a, 224a.       Contrary to the objectors’
speculative testimony, Applicant’s representative testified that in more than 30
years he built over 200 cellular communications towers, none of which ever fell.
228a-29a. He further testified that the towers are designed based on area wind
speeds, and they are built not only to withstand those wind speeds but to withstand
even “more robust” wind speeds. R.R. at 229a.


             Finally, the objectors’ general testimony regarding a potential decline
in property values and general aesthetic concerns is also insufficient to meet their
burden. In Coble Construction Co. v. Zoning Hearing Board of Borough of East
Stroudsburg, 329 A.2d 912 (Pa. Cmwlth. 1974), this Court explained:

             Neither aesthetic reasons nor the conservation of property
             values nor the stabilization of economic values in a

                                         14
            township are, singly, or combined, sufficient to promote
            the health or the morals or the safety or the general
            welfare of the township or its inhabitants or property
            owners, within the meaning of the enabling act or under
            the Constitution of Pennsylvania. The Legislature in
            providing for special exceptions in zoning ordinances has
            determined that the impact of such a use of property does
            not, of itself, adversely affect the public interest to any
            material extent in normal circumstances, so that a special
            exception should not be denied unless it is proved that
            the impact upon the public interest is greater than that
            which might be expected in normal circumstances. …
            The burden is on the township and the protesting
            neighbors, if there are any, to [p]rove by evidence that
            the impact of the requested use in its normal operation
            would be injurious to the public health, safety and
            welfare. The protestants cannot sustain that burden by
            merely introducing evidence to the effect that property
            values in the neighborhood may decrease.

Id. at 917 (citations and quotations omitted) (emphasis added); see also
Lombardozzi v. Millcreek Twp. Zoning Hearing Bd., 829 A.2d 779 (Pa. Cmwlth.
2003) (aesthetic factors alone cannot justify a municipality’s zoning decision);
Shamah v. Hellam Twp. Zoning Hearing Bd., 648 A.2d 1299, 1304 (Pa. Cmwlth.
1994) (adverse effect on public welfare cannot be established “by merely
introducing evidence to the effect that property values in the neighborhood may
decrease”). In light of the fact that the objectors’ other reasons for opposing
Applicant’s special exception application are unsustainable, the protection of
aesthetics and property values cannot serve as sufficient bases for the ZHB’s denial
of Applicant’s special exception application.     Wyomissing Area Sch. Dist. v.
Zoning Hearing Bd. of Wyomissing Borough, 128 A.3d 851 (Pa. Cmwlth. 2015),
appeal denied, 141 A.3d 484 (Pa. 2016). Moreover, as with their other concerns,
the objectors’ lay testimony on this point was based solely on their personal



                                        15
opinions, bald assertions and speculation, which is insufficient to meet their
burden. Oasis.


             In sum, the objectors offered speculative testimony regarding the
alleged adverse effects of Applicant’s proposed communications tower.            The
objectors did not present evidence that the proposed tower would generate adverse
effects greater than that normally expected from this type of use. Further, while
the objectors offered some testimony that Applicant’s proposed use was
inconsistent with the character of the neighborhood, the fact remains that the
property lies in a Light Industrial District, and communications towers (as well as a
wide array of other commercial and industrial uses) are permitted by special
exception in that district. Additionally, while there are some residences near the
property, the property is largely surrounded by commercial and industrial uses.
R.R. at 198a, 227a. Also, a 120-foot high guyed tower currently exists on the
property. The objectors’ general concerns were directed more at the language of
the zoning ordinance, which permits a communications tower by special exception
in the I-L District, rather than Applicant’s specific proposed use.       Thus, the
testimony offered by the objectors was not sufficient to defeat Applicant’s special
exception application. The ZHB erred in determining otherwise.


             Accordingly, we reverse the deemed denial of Applicant’s special
exception application.




                                       ROBERT SIMPSON, Judge


                                         16
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allegheny Tower Associates, LLC,      :
                       Appellant      :
                                      :
            v.                        :   No. 2085 C.D. 2015
                                      :
City of Scranton Zoning Hearing       :
Board                                 :


                                   ORDER

            AND NOW, this 10th day of January, 2017, the order of the Court of
Common Pleas of Lackawanna County is REVERSED.




                                    ROBERT SIMPSON, Judge
