Agenda - Planning Commission - 02/03/2011

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Zoning Bulletin December 25, 2010 Volume 41 No. 24 The case involved the interpretation of a zoning ordinance that con- tained both a general provision governing variances and another pro- vision governing variances for certain structures such as communica- tions towers. The Background/Facts: In December 2004, Pegasus Tower Com- pany ( "Pegasus ") applied to the borough's Zoning Hearing Board ( "ZHB ") for a variance to build a proposed 195 -foot communica- tions tower on property it leased in the borough. The property was located in the A -1 Conservation zoning district, which had a height restriction of 15 feet. The ZHB eventually granted the variance. Subsequently, neighboring property owners (the "Neighbors ") ap- pealed to the trial court the ZHB's grant of the variance to Pegasus. The Neighbors argued that: "the ZHB should not have granted the variance as to the height of the tower because Pegasus failed to es- tablish that the requirements for a variance set forth in section 908 of [the borough's] Zoning Ordinance were met." Section 908 provided that the ZHB: "may grant a variance" provided that all of the speci- fied findings were made "where relevant in a given case." Among the required findings was that the applicant (here Pegasus) show hard- ship. The Neighbors argued that Pegasus had not shown hardship and therefore the variance should not have been granted. The trial court affirmed the ZHB's action and dismissed the Neigh- bors' appeal. The Neighbors again appealed. The Court's Decision: Judgment of trial court affirmed. The Commonwealth Court of Pennsylvania held that, in seeking the height variance, Pegasus was not required to show hardship un- der § 908 of the borough's Zoning Ordinance. The court found that the requirements of § 908 were in conflict with another special provi- sion in the same ordinance. Section 406.2 of the Zoning Ordinance allowed the ZHB to authorize a variance to the height regulations in any district if: (1) all front, side and rear yard depths were increased one foot for each additional foot of height; and (2) the structure was, among other particular structures, a television or radio tower. The court held that "[w]henever a general provision in an ordi- nance shall be in conflict with a special provision in the same ordi- nance, and the conflict is not reconcilable, the special provision shall prevail and shall be construed as an exception to the general provi- sion." Here, the court found § 908 was a general provision govern- ing variance. And the court found § 406.2 was a special provision governing height variance for particular structures. To the extent the provisions were irreconcilable, the court said that § 406.2 must be construed as an exception to § 908. © 2010 Thomson Reuters 7