IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Roberts and :

Margaret Roberts, :

:

Appellants :

:

v. : No. 1319 C.D. 2016

: Argued: March 6, 2017

Luzerne County Zoning :

Hearing Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 18, 2017

John Roberts and Margaret Roberts (collectively, Objectors) appeal 

from an order of the Court of Common Pleas of Luzerne County (trial court) 

affirming a decision of the Luzerne County Zoning Hearing Board (Board), which 

granted SMSA Limited Partnership d/b/a/ Verizon Wireless’s (Verizon) 

application for variance and special exception to build a wireless communications 

tower. Objectors argue that the Board erred or abused its discretion by granting 

Verizon’s variance and special exception request because Verizon did not seek 

necessary variances from the side yard setbacks or satisfy the criteria for a 

variance. Upon determining that the Board’s opinion does not contain necessary 

findings of fact or conclusions of law and does not address all the variance relief

requested, we vacate and remand. 
2

I. Background

This matter involves a land use appeal brought pursuant to the 

Pennsylvania Municipalities Planning Code (MPC).

1

In November 2014, Verizon 

filed a variance and special exception application with the Board for the 

construction of a wireless communications facility at 33 Blackman Street, 

Courtdale Borough, Luzerne County, Pennsylvania (Property). The Property is 

owned by Courtdale Volunteer Hose Company, which leased a portion of it to 

Verizon. The rectangular-shaped Property consists of two parcels with a width of 

200 feet fronting Blackman Street and a depth of 150 feet. The Property is located 

in the B-3 Highway Business Zoning District under the Luzerne County Zoning 

Ordinance (Ordinance),2 which permits communications towers as a special 

exception use. The surrounding properties are zoned R-1 One Family Residence 

District. 

In the application, Verizon requested: (i) a special exception in 

accordance with Section 4.09 of the Ordinance to construct a new wireless 

communications facility on the Property, including a 100-foot monopole with 

attached 5-foot lightning rod and associated improvements including an 11.5-foot 

by 16-foot prefabricated equipment shelter, outdoor generator, cable ice-bridge and 

an 8-foot-high chain link fence; (ii) a variance from the setback requirement under 

Section 8.04(B)(15) of the Ordinance to allow the foundation of the proposed 

communications tower to be setback from the adjacent, residential property line of 

21 feet (100 feet required); (iii) a variance from Article 5 of the Ordinance to allow 

 

1 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.

2

The Ordinance was originally adopted on December 16, 1964, and last amended on 

September 25, 2012. 
3

a rear setback of 10.5 feet (40 feet required); (iv) a variance from Article 5 of the 

Ordinance to allow a front setback of 14.5 feet (30 feet required); (v) a variance 

from Article 5 of the Ordinance to allow a side setback of 11 feet (15 feet 

required); (vi) a variance from Section 6.25(B) of the Ordinance to allow a rear 

setback of 1.7 feet for an accessory structure (10 feet required); and (vii) a variance 

to allow the installation of an eight-foot-high chain-link fence.3 Supplemental 

Reproduced Record (S.R.R.) at 4b. 

In January 2015, the Board held a public hearing on Verizon’s

application. At the hearing, Verizon appeared and produced witnesses. Persons 

opposing Verizon’s request also appeared and testified, including John Roberts. At 

the conclusion of the hearing, the Board granted Verizon’s application for variance 

and special exception, but limited the height of the facility to a 95-foot monopole 

with an attached 1-foot lightning rod. Board Hearing, 1/6/15, Notes of Testimony 

(N.T.) at 99-100; Reproduced Record (R.R.) at 121a-122a.

In the cursory opinion that followed, the Board made findings 

identifying the parties involved, and the Property’s location, zoning district, 

dimensions, ownership and lease arrangement. Board Opinion, 6/2/15, Findings of 

Fact (F.F.) Nos. 1-6; R.R. at 30a-31a. As to the request itself, the Board found that 

Verizon filed a zoning application seeking a special exception “for the leased

property as a cell phone tower and an accessory structure and also applied for 

variances relating to dimensional setbacks, reducing the setbacks for both the cell 

phone tower . . . and for the accessory structure to rear and side yard setbacks” 

 

3

Section 804(B)(20) of the Ordinance requires a communication tower be secured by a 

fence with a maximum height of eight feet. It is unclear why Verizon requested relief in this 

regard. 
4

pursuant to the Ordinance. F.F. No. 7; R.R. at 31a. Specifically, “[t]he rear 

setback request was from 40 feet to 10.5 feet, the front setback was from 30 feet to 

14.5 feet, and the side setback from 14 feet to 11 feet.” F.F. No. 8; R.R. at 31a. 

“The variance for the rear setback of the accessory structure was 10 feet down to 

1.7 feet and the variance for height of fence was 8 feet.” F.F. No. 9; R.R. at 31a. 

The Board granted the special exception and “all the variances” with the restriction 

that the cell tower’s total height not exceed 96 feet. F.F. No. 10; R.R. at 31a. The 

Board then recited the criteria for a variance as its conclusions of law. Board 

Opinion, Conclusions of Law Nos. 1-5; R.R. at 31a-32a. 

Objectors appealed to the trial court. Verizon intervened. Without

taking additional evidence, the trial court affirmed the Board. In so doing, the trial 

court found Verizon is licensed by the Federal Communications Commission 

(FCC) to operate a wireless communications system within a designated frequency 

spectrum in Luzerne County. Pursuant to its FCC license, Verizon must ensure 

that its wireless signal strength is sufficient to provide proper reception and 

communication within its licensed area. Within Courtdale Borough, the signal 

strength is weak, which causes poor wireless service. As a result, residents 

experience a lack of reliable coverage, and Verizon encounters a lack of network 

capacity. The trial court further found that the lack of service coverage: 

is due, in part, to the topography of the area. That is, 

Courtdale is a bowl-shaped area. The proposed facility 

where the equipment will be located affects the 

propagation of radio frequency signal, thus creating 

better coverage. In addition, there is no residential 

development to the rear of the location where the 

variance is requested.

Trial Court Opinion, 6/29/16, at 5. 
5

The trial court recognized that the Ordinance permits a cellphone 

tower as a special exception use provided it meets the Ordinance’s objective 

requirements. Verizon’s lease of the Property did not create a new lot for purposes 

of satisfying dimensional regulations. The trial court determined that Verizon was 

merely seeking a de minimis variance from the Ordinance’s setback provisions and 

that rigid compliance with the Ordinance was not necessary. It further determined 

that the fence height of eight feet around the facility will serve public interest 

providing a safety feature. Thus, the trial court concluded that the Board did not 

commit an error of law or an abuse of discretion in granting Verizon’s application. 

Trial Court Opinion, at 5-6.

II. Issues

On appeal to this Court,4 Objectors contend that the Board erred or 

abused its discretion by granting Verizon’s variance and special exception 

application. Objectors maintain that Verizon did not seek a variance to reduce side 

yard setbacks, only the rear setback. Even assuming that it did, Verizon did not 

meet the criteria for variance because it did not show any unique physical 

characteristics or condition of the Property or that it would suffer any unnecessary 

 

4

In a land use appeal where the trial court does not take additional evidence, our review 

is limited to determining whether the Board abused its discretion or committed an error of law. 

In re Thompson, 896 A.2d 659, 666 n.4 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 636 (Pa. 

2007). The Board, as the finder of fact, is empowered to judge the credibility of the evidence 

and the weight it should be afforded; a court may not substitute its interpretation of the evidence 

for that of the governing body. In re Richboro CD Partners, L.P., 89 A.3d 742, 754-55 

(Pa. Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014). The governing body abuses its discretion 

when its findings of fact are not supported by substantial evidence. In re Thompson, 896 A.2d at 

666 n.4. Substantial evidence is “such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Id. (citations omitted). 
6

hardship as a result. Moreover, the Board’s opinion does not contain sufficient 

findings of fact that would establish the basis for approving the variances. In 

addition, Objectors assert that Verizon failed to meet the requisite criteria for

special exception because it did not meet the Ordinance’s requirement that a 

cellphone tower’s base and foundation must be more than 100 feet from a 

residential property line.

III. Discussion

To begin, Section 908(9) of the MPC, 53 P.S. §10908(9), requires a 

zoning hearing board to render essential findings of fact, conclusions of law, and 

sufficient rationale to support meaningful appellate review. Taliaferro v. Darby 

Township Zoning Hearing Board, 873 A.2d 807, 816 (Pa. Cmwlth.), appeal 

denied, 887 A.2d 1243 (Pa. 2005). Specific findings are not required if the zoning 

hearing board's opinion provides an adequate explanation of its resolution of the 

factual questions involved and if it sets forth the board's reasoning in such a way as 

to demonstrate its decision was reasoned and not arbitrary. Id. 

Where the zoning hearing board’s record includes findings of fact and 

the trial court does not take additional evidence, the board’s findings “shall not be 

disturbed by the court if supported by substantial evidence.” Section 1005-A of 

the MPC.5 The trial court’s review is limited to a determination of whether the 

board abused its discretion or committed error of law and whether its necessary 

findings are supported by substantial evidence. Pyzdrowski v. Board of Adjustment 

of City of Pittsburgh, 263 A.2d 426, 429 (Pa. 1970). A reviewing court “errs when 

it substitutes its judgment on the merits for that of a zoning board.” Marshall v. 

 

5 Added by the act of December 21, 1988, 53 P.S. §11005-A.
7

City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014). However, “[i]f the record does 

not include findings of fact or if additional evidence is taken by the court . . . , the 

court shall make its own findings of fact based on the record below as 

supplemented by the additional evidence, if any.” Section 1005-A of the MPC. 

A dimensional variance involves a request to adjust zoning 

regulations to use the property in a manner consistent with regulations, as opposed 

to a use variance, which involves a request to use property in a manner that is 

wholly outside zoning regulations. Hertzberg v. Zoning Board of Adjustment of 

the City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998). The standards for granting a 

variance are well established and apply to use and dimensional variances. Id. at 

46-47. Specifically, an applicant seeking a variance must demonstrate: 

That there are unique physical circumstances or 

conditions, including irregularity, narrowness or 

shallowness of lot size or shape or exceptional 

topographical or other physical conditions peculiar to the 

particular property and that the unnecessary hardship is 

due to such conditions and not the circumstances or 

conditions generally created by the provisions of the 

Zoning Ordinance in the neighborhood or district in 

which the property is located;

That because of such physical circumstances or 

conditions, there is no possibility that the property can be 

developed in strict conformity with the provisions of the 

Zoning Ordinance and that the authorization of a 

variance is therefore necessary to enable the reasonable 

use of the property;

That such unnecessary hardship has not been created by 

the appellant;

That the variance, if authorized, will not alter the 

essential character of the neighborhood or district in 

which the property is located, nor substantially or 
8

permanently impair the appropriate use or development 

of adjacent property, nor be detrimental to the public 

welfare; and

That the variance, if authorized, will represent the 

minimum variance that will afford relief and will 

represent the least modification possible of the regulation 

in issue. In granting any variance, the board may attach 

such reasonable conditions and safeguards as it may 

deem necessary to implement the purposes of this act and 

the Zoning Ordinance.

Section 8.41 of the Ordinance; accord Section 910.2 of the MPC;

6 Hertzberg, 

721 A.2d at 46-47. 

“The overriding standard for a variance is unnecessary hardship.” 

Doris Terry Revocable Living Trust v. Zoning Board of Adjustment of City of 

Pittsburgh, 873 A.2d 57, 63 (Pa. Cmwlth. 2005). For an applicant to show 

unnecessary hardship in the context of a use variance, he must prove that either: 

“(1) the physical features of the property are such that it cannot be used for a 

permitted purpose; or (2) the property can be conformed for a permitted use only at 

a prohibitive expense; or (3) the property is valueless for any purpose permitted by 

the zoning ordinance.” Taliaferro, 873 A.2d at 812. “The applicant must show the 

hardship is unique or peculiar to the property as distinguished from a hardship 

arising from the impact of zoning regulations on the entire district.” Id. 

However, in Hertzberg, the Pennsylvania Supreme Court set forth a 

more relaxed standard for establishing unnecessary hardship for a dimensional 

variance. Hertzberg, 721 A.2d at 49. The Supreme Court explained:

When seeking a dimensional variance within a permitted 

use, the owner is asking only for a reasonable adjustment 

 

6 Added by the act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10910.2.
9

of the zoning regulations in order to utilize the property 

in a manner consistent with the applicable regulations. 

Thus, the grant of a dimensional variance is of lesser 

moment than the grant of a use variance, since the latter 

involves a proposal to use the property in a manner that is 

wholly outside the zoning regulation.

Id. at 47. The Court held “the quantum of proof required to establish unnecessary 

hardship is indeed lesser when a dimensional variance, as opposed to a use 

variance, is sought.” Id. at 48. Under Hertzberg, the courts may consider multiple 

factors in determining whether the applicant established unnecessary hardship for a 

dimensional variance. Id. at 50. These factors include: “the economic detriment to 

the applicant if the variance was denied, the financial hardship created by any work 

necessary to bring the building into strict compliance with the zoning requirements 

and the characteristics of the surrounding neighborhood.” Id. 

Although Hertzberg eased the requirements, it did not remove them. 

Tri–County Landfill, Inc. v. Pine Twp. Zoning Hearing Board, 83 A.3d 488, 520 

(Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014) (citing Doris Terry, 873 

A.2d at 62). An applicant must still present evidence as to each of the conditions 

listed in the zoning ordinance, including unnecessary hardship. Id. Where no 

hardship is shown, or where the asserted hardship amounts to a landowner’s desire 

to increase profitability or maximize development potential, the unnecessary 

hardship criterion required to obtain a variance is not satisfied even under the 

relaxed standard set forth in Hertzberg. Id. However, “in establishing hardship, an 

applicant for a variance is not required to show that the property at issue is 

valueless without the variance or that the property cannot be used for any permitted 

purpose.” Marshall, 97 A.3d at 330 (emphasis in original).
10

Notably, a public need for a cellphone tower is not a unique 

characteristic of the property itself. See Township of East Caln v. Zoning Hearing 

Board of East Caln Township, 915 A.2d 1249, 1254 (Pa. Cmwlth. 2007). East 

Caln involved an application by a wireless communication provider to expand an 

existing conditional use permit in order to construct a new cellphone tower that 

exceeded the height requirements of the applicable ordinance. Id. at 1250. The 

wireless communication provider introduced evidence before the zoning hearing 

board documenting the coverage gap and the attendant interference with 

emergency services that would be eliminated by the variance. The provider also 

presented evidence that alternative sites were not conducive locations for its 

proposed tower. The board granted the variance, reasoning that the variance was 

in the public interest. Id. at 1251. On appeal, this Court reversed. We explained 

that, in order to carry the burden necessary for variance relief, the property owner 

must “establish a hardship that attends the property, as distinguished from its 

owner.” Id. at 1254 (emphasis in original). A determination that the tower was in 

the public interest and alternate sites were not suitable locations did not amount to 

a hardship attendant to the subject property. Id. 

Later, we clarified that East Caln “does not counsel that a variance 

cannot be granted where a wireless communication provider is involved and the 

public is benefited by improved coverage.” In re Towamencin Township, 42 A.3d 

366, 372 (Pa. Cmwlth. 2012). Rather, East Caln “clearly advises that a variance 

cannot be granted when found to be in the public interest alone.” Id. (emphasis 

added). 

Upon review, the Board did not provide sufficient findings or an 

adequate explanation to support its conclusion that Verizon satisfied the criteria for 
11

variance to allow for adequate appellate review. Although the Board made 

findings, those findings merely identified the parties involved, the Property’s 

location, zoning district, dimensions, ownership and lease arrangement, and the 

aspects of the application. The Board did not make any findings regarding whether 

the evidence satisfied the criteria for granting a variance, including any 

unnecessary hardship attendant to the Property. See Marshall, 97 A.3d at 331 (“It 

is the function of the zoning board to determine whether the evidence satisfies the 

criteria for granting a variance.”). The Board concluded by merely reciting the 

boilerplate criteria for a variance, without any specifics regarding this particular 

Property. 

Although the trial court attempted to provide some justification for the 

Board’s decision by adding facts not found by the Board, the trial court did not 

accept additional evidence or conduct de novo review of the evidence. Rather, the 

trial court reviewed the Board’s findings under its appellate standard of review. 

See Trial Court Opinion, at 3, 5-6. Therefore, our review is limited to determining 

whether the Board abused its discretion or committed an error of law. In re 

Thompson, 896 A.2d 659, 666 n.4 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 

636 (Pa. 2007). 

Even if we were to review the trial court’s opinion, as opposed to the 

Board’s, the trial court’s opinion does not adequately address the circumstances

attendant to the Property warranting a variance. Rather, the trial court focused on 

Verizon’s FCC responsibilities, the area’s topography, and the need for improved 

wireless communications service in Courtdale Borough. Such circumstances do

not attend to the Property. See Towamencin; East Caln.
12

Moreover, the Board did not address the variance from Section 

8.04(B)(15) for the side yards in its opinion. Section 8.04(B)(15) of the Ordinance 

provides:

The foundation and base of any Communications Tower 

located adjacent to any residentially occupied property, 

or adjacent to any residential zone, shall be set back from 

a property line (not lease line), at least one hundred (100) 

feet and shall be set back from any other property line 

(not lease line) at least fifty (50) feet.

The Property is only 200 feet wide; 150 feet deep. Presumably, the foundation and 

base of the proposed tower would encroach within the 100-foot setbacks for the 

two residentially-zoned side properties, one of which is owned and occupied by 

Objectors. Although the Board granted a rear yard setback from 100 feet required 

to 21 feet at the hearing, N.T. at 99-100; R.R. at 1211a-122a, the Board did not 

address or specifically grant a variance from Section 8.04(B)(15) for the side 

yards. See R.R. at 121a. 

Insofar as Objectors maintain that Verizon never requested a variance 

from Section 8.04(B)(15) from the side yards, we disagree. Initially, Verizon 

requested a “[v]ariance to allow foundation of communications tower to be setback 

from adjacent, residential property line (100’ required; 21’ proposed).” S.R.R. at 

4b. The 21-foot proposal pertains only to the rear setback. R.R. at 119a. Verizon 

asserts it referenced 21 feet because this dimension was the maximum relief 

requested from Section 8.04(b)(15). Intervenor’s Brief at 46. Notwithstanding, in 

the maps submitted as part of Verizon’s application, Verizon specifically requested 

a variance “to permit a tower to be setback less then [sic] the required 100 feet (98 

feet is proposed), per section 804.B.15 of the [Ordinance].” See Supplemental 

Certified Record, Zoning Hearing Board Exhibits, CMC Engineering Plans, 
13

Zoning Note No. 3. This request clearly pertains to setback relating to both 

adjacent side properties, including Objectors’ property. Moreover, the 100-foot 

setback for all sides was discussed at the hearing. See R.R. at 103a-104a, 116a, 

118a. 

IV. Conclusion

In sum, because the Board’s opinion does not contain necessary 

findings and conclusions or specifically address all aspects of Verizon’s variance 

request, we are compelled to vacate the trial court’s opinion and remand the matter 

to rectify these omissions.7 

MICHAEL H. WOJCIK, Judge

 

7

In light of this disposition, we need not address Objectors’ remaining argument that the 

Board erred or abused its discretion by granting a special exception. Section 4.09 of the 

Ordinance permits communication towers by special exception provided the proposed use 

satisfies the objective requirements. Resolution of this issue will depend on whether Verizon is 

entitled to the variances requested. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Roberts and :

Margaret Roberts, :

:

Appellants :

:

v. : No. 1319 C.D. 2016

: 

Luzerne County Zoning :

Hearing Board :

O R D E R

AND NOW, this 18th day of April, 2017, the order of the Court of 

Common Pleas of Luzerne County (trial court), dated June 29, 2016, is VACATED 

and this matter is REMANDED to the trial court with instructions to remand to the 

Luzerne County Zoning Hearing Board to make findings of fact and conclusions of 

law consistent with the foregoing opinion. 

Jurisdiction is relinquished.

__________________________________

MICHAEL H. WOJCIK, Judge