Pennsylvania Addresses Variances Applied to Cell Towers
On June 2, 2020, in Fairview Township v. Fairview Township Zoning Hearing Board, the Pennsylvanian appellate Commonwealth Court addressed issues related to variances and cell towers (wireless communications towers).
Use Variances Remain an Extraordinary (and Rare) Remedy
A variance represents an extraordinary remedy: “[t]he burden on an applicant seeking a zoning variance is heavy, and variances should be granted sparingly and only under exceptional circumstances..” [Slip 7, internal citations omitted].
The applicant must establish something beyond mere hardship (economic) to the applicant. “[T]he fact that “the property may be used more profitably with the proposed use is not grounds for granting a variance.”” [Slip 8, internal citations omitted].
Furthermore, as Fairview Township again emphasizes, the applicant cannot just cite some alleged physical defect or physical limitation in the property, including shape, that allegedly impairs or somehow precludes the desired use. Instead, consistent with constitutional law, the applicant must show that the physical defect precludes or creates “unnecessary hardship,” not just mere hardship, for all the potential uses permitted by the zoning district. [See slip, 9]. The ZHB or courts cannot just look at one potential use but must look at all potential uses to evaluate whether the extraordinary remedy of a variance applies and the criteria for variances are met.
Municipalities May Regulate Wireless Communications Towers
The Commonwealth Court held that the federal, Telecommunications Act (TCA) does not summarily trump state and local zoning. [Slip, 18-19]. The holding clarifies claims by wireless providers that the TCA largely trumps local authority and attempts to clarify the ambiguities with the federal, Third Circuit’s “one-carrier rule.” [See extensive discussion, slip 11-18].
Thus, the Commonwealth Court held that bona fide local zoning and community issues are factors when considering a variance request because such denials are not based solely on the presence or absence of wireless services in the proposed tower site (regardless who provides the wireless services). [Slip, 19-20] The Commonwealth Court reminds, “[n]ot every municipality’s denial of an application to build a wireless facility violates the TCA.” [Slip, 20, internal citations omitted].
Fairview Township provides much needed guidance to communities regarding both variances and cell towers.
- Municipalities retain the quintessential function of analyzing the compatibility between uses in a land use context.
- Variances remain an extraordinary remedy–consistent with the constitutional rights of neighboring and affected properties, not just the alleged rights of the applicant or site-owner.
- When assessing variances, the assessing body must consider all uses, not just the applicant’s “preferred” or targeted use—consistent with the constitutional rights of neighboring and affected properties, the basis for zoning.
- Hardship alone is not adequate to support variances; the applicant must demonstrate a higher “unnecessary hardship.”
- The Telecommunications Act does not summarily trump local land use and zoning.