Agenda - Planning Commission - 02/02/2006

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Page 4-- December 24,,2005 ~B. But, the terms "public utility" and "public utility station" were never de- fined in the ordinance. According to the ordinance, all undefined words were to have their customary dictionary definitions. Also, the court determined, based on previous cases, that "ambiguous zoning ordinances should be interpreted to permit the free use of land.". With that in mind, the court noted that a determination as to whether a company, such as BellSouth, constituted a public utility should have been placed on the function of the service provided, rather than a literal interpreta- tion of the definition of a public utility. Also, the number of subscribers to the service was irrelevant to the analysis. Because the issue surrounding the BellSouth case Was the first of its type for the court, the court looked to other states that had concluded that a cellular telephone company was a public utility. Pennsylvania -- the only state to hold that a company such as BellSouth was not a public utility -- did so because its zoning laws specifically excluded "mobile domestic cellular radio telecommuni- cations services," and the providers were not required to render service to the general public. This court disageed with the reasoning behind the Pennsylvania court decision, mainly because, unlike that state, North Carolina zoning law did not specifically exclude this type of business. It held that a cellular telephone com- pany was a "public utility," and accordingly, a cellular telephone tower, which provided cellular telephone service, was a "public utility station" in Henderson County. Therefore, the decision of the board was reversed. see also: A & B Refuse Disposers [nc. v. Board of Ravenna Township Trustees, 596 N.E. 2d 423 (1992). Denial -- Subdivision plan denied without stated reasons Board believes.developer already knows underlying reasons Citation: L~ase v. Hamilton Township, Commonwealth Court of Pennsylvania, No. 1465 C.D. 2004 (2005) PENNSYLVANIA (10/28/05) -- Lease wanted to develop a subdivision in Hamilton Township. Al'ter Lease and the township sent letters back and forth, the township board of supervisors denied Lease's request in a June 7,2001, letter. The denial letter failed to include reasons for the denial. Lease sued, and the court ruled in his favor. It found that the board's denial letter was insufficient. The township appealed, arguing that Lease knew about the plan's deficien- cies through their earlier correspondence. DECISION: Ale-med. The township's denial of Lease's subdivision plan apparently was based 134 © 2005 Ouin~an Publishing Group. Any reproduction is prohie~teo. For more information please call (617} 542-0048.