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December 25, 2010 Volume 41 No. 24 Zoning Bulletin <br />The court concluded that § 406.2 addressed the concerns associ- <br />ated with particular structures such as communications towers. Sec- <br />tion 406.2 allowed certain structures —with sufficient setbacks —not <br />because of hardship to the applicant but because, by their very na- <br />ture, those structures necessarily had to be "unusually tall." <br />Having found S 406.2 —not § 908— applied to Pegasus' proposed <br />tower, the court concluded that the "hardship" requirement of S 908 <br />was inapplicable. Since Pegasus met both requirements of § 406.2, <br />the ZHB's grant of the variance to Pegasus was proper. <br />See also: In re Thompson, 896 A.2d 659 (Pa. Commw. Ct. 2006). <br />Case Note: In construing the Zoning Ordinance, the court also <br />noted that since the ordinance allowed communications towers <br />by special exception, to then limit the height of such towers to <br />15 feet unless the applicant can show hardship would produce <br />an "absurd result" —since no tower limited to a height of 15 feet <br />"could possibly be effective." <br />Reasonableness of Zoning Decision —City grants <br />conditional use permit for electrical substation <br />expansion despite opposition <br />Neighbors challenge grant as "unreasonable" because it did <br />not mandate restrictions related to potential hazards <br />Citation: Evans v. City of Emporia, 2010 WL 4674186 (Kan. Ct. <br />App. 2010) <br />KANSAS (11/19/10) —This case discusses the factors courts may <br />use in determining whether a zoning authority's final decision was <br />"reasonable." <br />The Background/Facts: Westar Energy, Inc. ( "Westar ") owned <br />property in the city, which it used as an electric substation since <br />1937. In 2008, Westar sought to expand the equipment coverage of <br />its electric substation 100 feet and add a forth transformer. To that <br />end, Westar filed with the city an application for a conditional use <br />permit ( "CUP "). Eventually, the city's planning commission recom- <br />mended Westar's CUP be approved with two conditions: (1) Westar <br />would construct a nine -foot decorative concrete wall on a specified <br />part of the property; and (2) further expansion of the substation <br />8 © 2010 Thomson Reuters <br />