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Chester County Press

New Garden Zoning Hearing Board rejects several motions in its cell tower decision

04/02/2019 02:43PM ● By Richard Gaw
By Richard L. Gaw

Staff Writer

On an issue that has gripped both sides of a conversation that has been heard in Landenberg for more than two years, it took all of 20 minutes on March 24 for the New Garden Township Zoning Hearing Board to move the concept of constructing a proposed cell tower in Landenberg back several steps.

At its hearing to render a decision on the application of Eco-Site, Inc., to construct a cellular communications tower in the township, the board supported the township’s ordinances regarding the application of Eco-Sites, Inc., and its co-applicant T-Mobile Northeast, LLC in their attempt to prove that the township’s laws regarding the use and function of wireless communications facilities in the township are invalid and unconstitutional.  

In motion after motion, the Zoning Hearing Board (ZHB) supported the laws contained in Section 200-119, which establishes uniform standards for the siting, design, permitting, maintenance, and use of wireless communications facilities in the township.

The ordinance states that “while the township recognizes the importance of wireless communications facilities in providing high-quality communications service to its residents and businesses, the township also recognizes that it has an obligation to protect the public safety and to minimize the adverse visual effects of such facilities through the standards set forth” in several dozen provisions.

The hearing was chaired by Zoning Hearing Board Solicitor Winifred Sebastian, Esq., and included members Fred Clemens, Richard Zimny and Pete Scilla.

The board denied a motion submitted by the co-applicants stating that several sections of the New Garden Township Zoning Ordinance (Sec. 200-119. B12 and 200-19C) are de facto exclusionary, and by reason of its establishment of tower height limitations is invalid and unconstitutional.

The board also rejected a motion that stated that the co-applicants had met their burden of showing that the township zoning ordinance is de facto exclusionary regarding personal wireless service facilities, by reason of the single-use restriction in sections 200-14 and 200-18.

The board turned back a motion by the co-applicants that claimed the zoning ordinance is de facto exclusionary, invalid and unconstitutional regarding personal wireless facilities.

Throughout the hearing, the board also repeatedly turned back motions on the basis that the township’s zoning ordinances do not violate several provisions listed in the 1996 Telecommunications Act, by what the co-applicants claimed prohibited personal wireless service facilities in the township, and to the extent that variance relief is needed to establish personal wireless facilities throughout the township – specifically, in the area south of Broad Run Road.

Referring to another section of the 1996 Telecommunications Act, the board also rejected the co-applicant’s claim that the township was discriminatory toward their application, by reason of their granting variance relief to other providers to establish functionally equivalent personal wireless facilities in the township.

The ZHB also rejected a motion that claimed that the township’s zoning ordinances violate the Telecommunications Act by reason of “unreasonable discrimination preventing that co-applicants to provide additional services or improve the existing wireless service in a significant part of the township.”   

The board also denied site-specific relief to the co-applicants to proceed with the development of a property for a personal wireless facility.

The board also stated that the co-applicants have not met the burden required for the granting of variances established by the Pennsylvania Municipality Planning Code and the township’s zoning ordinance, regarding height limitations for cell towers.

The ZHB also denied a use variance from the new garden township’s zoning ordinance to allow for the construction of a cell tower on the Santoro property located at 1511 Yeatmans Station Road in Landenberg.

The ruling of the ZHB on March 24 served as a judgment day for a nearly two-year-long series of hearings and testimony that attempted to justify the need to construct a 125-foot-tall wireless communications tower by Eco-Sites, Inc., a Durham. N.C.-based supplier of wireless and infrastructure solutions. Over the course of several hearings and in the testimony of several experts in telecommunications, attorney Christopher H. Schubert argued in favor of his client that the need to increase cell tower coverage in a specific area of New Garden Township was great, based on several tests that showed “dead zones” where cell phone service was poor.

Throughout the entirety of these hearings, arguments in favor of a cell tower were met with opposition by more than a dozen township residents, many of whom live near the Santoro property – also known as Little Stenning Farm. Given official party status in the hearing, residents were joined by historians and environmentalists in voicing their rejection to the selection of the Santoro property as the site of the tower.

Public opposition to a planned cell tower was first heard at a formal conditional use hearing at the New Garden Board of Supervisors meeting on April 17, 2017 and continued until testimony was closed at the end of 2018.

On instructions from Sebastian, further testimony, public comment or argument by attorneys on behalf of their clients was not permitted during the hearing. A written decision must be issued to the township no later than 30 days after the ruling.

To contact Staff Writer Richard L. Gaw, email rgaw@chestercounty.com.

 

 







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