Agenda - Planning Commission - 09/07/1999

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Page 4 -- August 25, 1999 Z.B. , township's ordinance required that a proposed exception not adversely af- fect the character of the general neighborhood or the conservation of prop- erty values. The board denied Omnipoint a permit, finding no studies were done on the effect of adjoining landowners' property and that Omnipoint failed to show the tower wonldn't adversely affect the general character of the neighborhood. Omnipoint sued the board, claiming it didn't have enough evidence to sup- port its decision. The board claimed the permit was denied for aesthetic reasons and to pro- tect property values. The court found the board violated the Telecommunications Act because it didn't have enough evidence to support its decision. The board appealed. DECISION: Affirmed. There was not enough evidence to support the board's denial of a special exception permit. If, as the board claimed, the permit was denied for aesthetic reasons and to protect property values, the board had to provide substantial evidence to sup- port the claim. Evidence had to show a tower would cause deterioration to the aesthetic character of the area or neighboring property values. Eleven neighbors said the tower would be visible over the tree line and would damage their property values -- however, they presented no evidence to this effect. In addition, their representative focused primarily on health is- sues, which the board could not consider under the Act. Citation: Omnifloint Co~. v. Zoning Hearing Board of Pine Grove Township, 3rd U.S. Circuit Court of Al;l)eals, No. 98-1962 (2999). The 3rd Circuit has jurisdiction over Delaware, New Jet'se); Petu~sylvania, and the Virgin Islands. see also: Cellular Telephoue Co. v. Town of Oyster Bay, 166 F. 3d 490 (1999). Setback ~ Owner claims entitlement to deck because his neighbors have one NEW YORK (7/19/99) -- Cassano owned a two-story home in the Incorporated Village of Bayville. He added an open, elevated, wooden 6-by-12-foot deck adjacent to the side of his house. After he built the deck, Cassancf'realized it violated tim village's side set- back. He applied for a variance, pointing out that many of the houses in his immediate neighborhood had similar decks with similarly deficient setbacks. The zoning board denied Cassano's request. It found the deck would be detrimental to the surrounding properties and had caused an undesirable change in the neighborhood, the variance request was substantial, and Cassano created his own hardship by building the deck without first determining if it would comply with the village's setback. Cassano appealed to court. He claimed the board's decision was arbitrary,