Agenda - Planning Commission - 12/02/2010

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Zoning Bulletin October 25, 2010 I Volume 4) No. 20 Special Exception —Zoning Board Grants Special Exception With Conditions That Two Code Defects Be Cured Objectors argue board cannot use conditions to cure code defects in a special exception application Citation: Blancett-Maddock v. City of Pittsburgh Zoning Bd. of Ad- justment, 2010 WL 3564856 (Pa. Commw. Ct. 2010) PENNSYLVANIA (09/15/10)—This case addressed the issue of whether condit-ions imposed by a zoning board can be used to cure an application for a special exception that does not satisfy the objective standards of the zoning code. The Background/Facts: In order to fill a coverage gap, VoiceStream Pittsburgh, L.P. ("T:Mobile") sought to construct a cell tower in a 43.77-acre cemetery owned by Bedford Memorial Park, LLC ("Bed- ford") in the city. T-Mobile proposed to locate a 150-foot tower on a 40-foot-by-20-foot plot of land in a corner of the cemetery, which it leased from Bedford. The cemetery was located in the Parks District of the city. In that district, cell towers were permitted by special excep- tion. In July 2008, T-Mobile filed an application for the necessary spe- cial exception. In October 2008, the city's Zoning Board (the `Board") granted T-Mobile's special exception application. In doing so, the Board had found that T-Mobile's proposed use failed to satisfy two the specific objective city Zoning Code (the "Code") requirements: (1) the 300- foot setback from adjacent residential properties; and (2) the 20-foot- wide requirement for its access road. Under the Code, access to all cell towers had to be at least 20 feet wide, and cell towers over 101 feet in height had to be set back at least 300 feet from adjacent residential properties. The Board found that the access road to T-Mobile's proposed tower was only 12 feet wide. The Board also found that, while the proposed tower was more than 300 feet from abutting residential properties, it was less than 300 feet from "adjacent" residential properties, which were separated from the cem- etery by a narrow commercial district. Despite these failures to satisfy the Code, the Board approved T- Mobile's application because it found these "minor" deficiencies could be cured "by moving the cell tower to another location in the cemetery and by widening the access road." - Neighboring property owners, David and Diane Blancett-Maddock, ob- jected. They appealed the Board's decision to the trial court. They argued that the Board erred in granting T-Mobile's request for a special exception. © 2010 Thomson Reuters 9 63