Thursday, November 10, 2016

Westmoreland County, Pennsylvania: Cell tower ruling could be appealed

 An appeal could soon come after a Westmoreland County judge overturned the rejection of a cellphone tower in Unity Township.

President Judge Richard E. McCormick Jr. last month reversed the local zoning hearing board's 2-1 decision in April to deny a request for a special exception that developer SBA Towers IX needs to build the tower to be used by Verizon Wireless in a residential zone at Pershing Park, not far from Arnold Palmer Regional Airport.

In his Oct. 27 opinion and order, McCormick said the board abused its discretion in objecting to the tower on safety and health issues and in finding that Verizon failed to make a good-faith effort to find an existing structure where it could place new antennae.

Verizon has said the 150-foot tower would improve area cell service.

Gabe Monzo, executive director of the airport authority, testified at a February hearing that the tower would create a hazard for aircraft using the airport.

But McCormick noted SBA provided a Federal Aviation Administration study indicating the tower would not be a hazard to air navigation. He said Monzo's statement and similar testimony by a local helicopter pilot were “based on their personal, limited experience... their opinions on the broader topic are no substitute for that of the federal agency that engages in a comprehensive analysis of the situation and has been charged with the responsibility of ensuring air traffic safety across the nation.”

The zoning board also argued that an SBA exhibit relating to federal standards for human exposure to electromagnetic radiation from cell towers lacked sufficient detail to satisfy health and safety concerns — an issue raised by residents of the neighboring Palmer Place development.

Greensburg attorney Bernard Matthews, representing a group of eight residents that is a party to the case as an appellee intervenor, argued SBA failed to demonstrate the tower would comply with electromagnetic-radiation standards set by the Federal Communications Commission. As a result, he said the special-exception application falls short of requirements in the township zoning ordinance.

But McCormick concluded there is substantial evidence the tower would not present a health and safety concern, noting that Verizon employees ensured it would comply with FCC guidelines.

The judge also said Verizon evaluated other antenna sites within a quarter-mile of the proposed location. Alternate locations suggested by residents at the February zoning board hearing are outside that distance, McCormick said.

Matthews also has contended that SBA lacks standing to seek a zoning exception because it does not own the property or have an active lease.

In late 2015, SBA purchased a two-year option to lease the site from the Columbus Home Association, McCormick noted in finding the developer has standing.

Matthews said he intends to appeal McCormick's decision to Commonwealth Court on behalf of the residents.

“We feel the evidence presented was insufficient to comply with the ordinance,” Matthews said. “Judge McCormick disagreed, and we respectfully disagree with Judge McCormick's analysis.”

Solicitor Daniel Hewitt said he doesn't expect the airport authority would file its own appeal but indicated it would consider “piggybacking” on an appeal by the residents.

David DeRose, solicitor for the zoning hearing board, noted there is a 30-day window to appeal.

An appeal by the zoning board would have to be filed by the township, he said.

Township solicitor Gary Falatovich could not be reached for comment. 


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