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March 27, 2026 Get Citation Alerts Download PDF Add Note

Pittsburgh SMSA Ltd. Partnership d/b/a Verizon Wireless v. Pleasant Hills Borough Council

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 945 C.D. 2025

• Judges: McCullough

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (18.4K)

• PDF

Lead Opinion

                        by [Patricia A. McCullough](https://www.courtlistener.com/person/8212/patricia-a-mccullough/)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pittsburgh SMSA Limited :
Partnership d/b/a Verizon :
Wireless, :
Appellant :
:
v. : No. 945 C.D. 2025
:
Pleasant Hills Borough Council : Argued: March 3, 2026

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STELLA M. TSAI, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION
BY JUDGE McCULLOUGH FILED: March 27, 2026

Pittsburgh SMSA Limited Partnership d/b/a Verizon Wireless (Verizon)
appeals from the order entered in the Allegheny County Court of Common Pleas (trial
court) on June 30, 2025, which affirmed the decision of the Pleasant Hills Borough
(Borough) Council and dismissed its land use appeal. On appeal to this Court, Verizon
chiefly challenges the Borough’s decision that it is required to obtain site plan approval
for its proposed construction of a monopole cell phone tower on its property. After
careful review, we affirm.
I. Background
This case arises from Verizon’s proposed construction of a monopole cell
phone tower on its two-acre property located at 128 Tel Star Drive, in Pittsburgh,
Pennsylvania (Property). The Property is located in the C-1 Zoning District (C-1
District) and currently operates a Verizon switching center. On March 24, 2023,
Verizon filed an application with the Borough Zoning Hearing Board (Board) seeking
a special exception1 to construct a monopole tower measuring 100 feet in height, topped
with a four-foot lighting rod. Under Section 374-87(B) of the Borough’s zoning
ordinance (Ordinance), antenna facilities are permitted use by special exception in any
zoning district in the Borough, subject to certain standards and criteria. (Original
Record2 (O.R.) at 90.)
The Board held a hearing on Verizon’s application and approved the
special exception subject to conditions by written decision dated July 13, 2023. The
approval letter reads in relevant part as follows:

This is to inform you that pursuant to the public
hearing on July 10, 2023, the [] Board has approved
[Verizon’s] request for a special exception pursuant to
Chapter 374-87, B(1)-(6), in order to install a proposed
antenna on said lot and block 562-G-146 within 30 days of
the approval date, with the following two conditions:

(1) the tower/antenna as built can’t exceed the current
proposed height of one hundred (100) feet without [Verizon]
coming back to the [Board] for additional approval; and

(2) [Verizon] must install masking fencing to muffle sound
for the newly added equipment and must meet with the
residents of the site to discuss potential mitigation of the
existing noise on the site.

The granting of the special exception does not eliminate
the requirement of any zoning or building permit(s) that
will be necessary. The required permit(s) cannot be issued
until after the thirty (30) day appeal period has expired,

1
In general, “[a] special exception is not an exception to a zoning ordinance, but rather a use which
is expressly permitted, absent a showing of a detrimental effect on the community.” Tower Access
Group, LLC v. South Union Township Zoning Hearing Board, 192 A.3d 291, 300 (Pa. Cmwlth. 2018).

2
Because the Original Record in this matter was submitted electronically and was not paginated, the
page numbers referenced in this opinion relating to this record reflect electronic pagination.

2
unless issued with a signed “At Your Own Risk” statement.
This form can be completed in our office if you plan to apply
for your permits before the 30-day period ends. (emphasis
added).

THE REQUIRED BUILDING PERMIT FOR A
GRANTED APPROVAL MUST BE OBTAINED
WITHIN ONE HUNDRED AND EIGHTY (180) DAYS
OR THE APPROVAL SHALL BECOME NULL AND
VOID. (emphasis in original).
(Reproduced Record (R.R.) at 10a.) Verizon did not appeal the Board’s decision, or
any of the conditions imposed.
While Verizon was in the process of applying for a building permit, the
Borough advised that site plan approval for the monopole was also required. On
September 25, 2023, Verizon sent a letter to the Borough objecting to the site plan
requirement and stating that pursuant to the Board’s decision, it was required only to
obtain a building permit. (R.R. at 11a.) The Borough informed Verizon by letter dated
October 6, 2023, that a building permit would not be issued without site plan approval.
It explained that, pursuant to Section 374-35 of the Ordinance, site plan approval was
required for all authorized uses, other than single-family dwellings in the C-1 District.3
(O.R. at 31.)

3
This provision reads:

Article X Commercial District C-1
....

§ 374-35. Site plan approval required for other than single-family
dwellings.

All authorized uses other than single-family dwellings in this district
shall be subject to the application requirements and approval
procedures for the site plan approval specified in § 374-71 of this
chapter.
(Footnote continued on next page…)

3
The letter also advised that Section 374-71B of the Ordinance, which
governs the site plan approval process, provides:

(1) The Planning Commission shall review the application at
a public meeting and shall forward written comments
pertaining thereto to Borough Council. Borough Council
shall act on the application within 60 days of final action by
the Planning Commission or, if the Planning Commission
fails to act, within 120 days of submission of the application.

(2) No building permits shall be issued until after the site
plan and other required elements of the application shall
have been formally approved by Borough Council.
(S.R.R. at 677) (emphasis added).
Verizon filed for site plan review on November 22, 2023, and the Borough
Planning Commission (Planning Commission) held multiple hearings on the matter.
(O.R. at 6.)4 While the proceedings were ongoing, on March 15, 2024, the Borough
advised Verizon that because it did not obtain a building permit within the 180-day
deadline, the Board’s decision granting the special exception was null and void, and
Verizon would need to re-apply to the Board for relief.
On March 26, 2024, the Planning Commission voted to recommend denial
of Verizon’s site plan for the monopole to the Borough Council. (O.R. at 403.) The

(Supplemental Reproduced Record (S.R.R.) at 652-53.)
4
Section 374-71 of the Ordinance governs site plan approval and mandates that the plan be
based on a survey of the property and show the “1) area location map; 2) existing and proposed
structures; 3) existing and proposed contours; 4) feasibility of proposals for disposition of stormwater
and sanitary waste; 5) location and dimensions of yards and evidence of compliance with other zoning
requirements; 6) traffic circulation on the site, ingress and egress to and from the site and layout of
proposed parking areas and loading areas; 7) landscaping plan; 8) dates of preparation and revision;
9) evidence of preparation by an architect, landscape architect or engineer.” (S.R.R. at 677)
(capitalization omitted).

4
Borough Council held a hearing on the matter and voted to deny the site plan, advising
Verizon by letter dated May 22, 2024, that:

This letter is provided as written notice of the determination
of the Borough Council of the Borough [] to deny the
proposal for site plan approval. The motion for approval was
denied by a vote of 6-0 at the meeting on May 20, 2024. This
denial is provided for purposes of the time period to appeal
this determination.
(O.R. at 15.) Verizon appealed the Borough Council’s decision to the trial court, which
affirmed the decision and dismissed Verizon’s appeal. This appeal followed.
II. Issues
Verizon raises three issues for our review, the first of which challenges
the Borough’s imposition of the site plan requirement as a prerequisite to obtaining a
building permit.5 Verizon additionally contends the Borough is estopped from denying
its application for a building permit because it intentionally prevented Verizon from
obtaining it within the 180-day deadline. Lastly, Verizon argues it is entitled to deemed
approval of the monopole use because Borough Council failed to detail its reasons for
denying the plan, in contravention of the relevant provision of the Pennsylvania
Municipalities Planning Code (MPC).6 We will address Verizon’s issues seriatim.7

5
We note that Verizon repeatedly misstates that the Borough Council denied its “land
development plan.” (See, e.g., Verizon’s Br., at 19.) However, the record is clear that the Borough
denied Verizon’s site plan, not a land development plan. (See, e.g., O.R. at 15, 403.) Verizon’s
entire land use appeal challenges the Board’s denial of its site plan. (R.R. at 4a-7a.)

6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

7
“In a case such as this, where the trial court takes no additional evidence, our standard of
review is limited to determining whether the zoning hearing board committed an abuse of discretion
or an error of law.” In re Brandywine Realty Trust, 857 A.2d 714, 717 (Pa. Cmwlth. 2004).

5
III. Analysis
A. Site Plan Requirement
Verizon first contends that it was not required to obtain site plan approval
as a prerequisite to obtaining a building permit because construction of the monopole
involves no land development or subdivision, nor does it implicate any municipal
services, such as sewage disposal or water supply. (Verizon’s Br., at 11-15.)
According to Verizon, it was required to obtain a building permit only in order to
construct the project.
We begin by noting that under the MPC, zoning officers are required to
“administer the zoning ordinance in accordance with its literal terms and shall not have
the power to permit any construction or any use or change of use which does not
conform to the zoning ordinance.” 53 P.S. § 10614. Additionally, “[t]he right to a
building permit is not clear [] where the applicant has not met all of the necessary
requirements of a zoning ordinance, and a zoning officer may not issue a permit where
there is such noncompliance.” Kirk v. Smay, 367 A.2d 760, 762 (Pa. Cmwlth. 1976).
We further observe that when considering whether a site plan is required
for a proposed use, this Court has looked to and relied on the plain language of the
operative ordinance provision itself. In Moy v. Zoning Hearing Board of Municipality
of Monroeville, 912 A.2d 373, 374 (Pa. Cmwlth. 2006), this Court considered whether
the zoning hearing board erred in requiring the appellant to submit a site plan for an
expansion to an existing restaurant. In addressing this issue, we looked to the
applicable language of the zoning ordinance, which required an applicant seeking to
“enlarge any structure” to obtain a site plan. Id. at 380. We concluded that site plan
approval was required, emphasizing that the plain language of the ordinance controlled,
and was dispositive to the issue on appeal. Id. at 379.

6
Similarly, in Kirk, 367 A.2d 760, the appellants sought approval to build
a medical office on the site of an existing shopping center, which was a permitted use
in the zoning district. The appellants filed a mandamus action in this Court, requesting
that we enter an order directing the zoning officer to issue a building permit for the
project, claiming that the officer improperly required site plan approval in order to
obtain the building permit. This Court disagreed, and based upon the language of the
ordinance we determined, “it is clear [] that the appellants were required to obtain site
plan approval as a prerequisite to a building permit[,]” and the “the zoning officer’s
denial of the building permit was based properly upon noncompliance with the zoning
ordinance.” Id. at 761, 763.
Here, while the Board’s written decision approved Verizon’s request for
a special exception to construct the monopole subject to the noted conditions, it also
expressly advised Verizon that “[t]he granting of the special exception does not
eliminate the requirement of any zoning or building permit(s) that will be
necessary.” (R.R. at 10a.) As to the Borough’s zoning requirements, Article X of the
Ordinance governs zoning in the C-1 District, and Section 374-35 plainly requires:
“All authorized uses other than single-family dwellings in this district shall be subject
to the application requirements and approval procedures for the site plan
approval specified in § 374-71 of this chapter.” (S.R.R. at 653) (emphasis added). In
turn, Section 374-71(2) of the Ordinance, directs that “[n]o building permits shall be
issued until after the site plan and other required elements of the application have
been formally approved by Borough Council.” (S.R.R. at 677) (emphasis added).
Therefore, the record reflects that Verizon was on notice that it was
required to comply with applicable zoning requirements upon gaining initial approval
for the monopole project, and the Ordinance clearly sets forth the site plan requirement

7
for all uses other than single-family dwellings. As in Kirk and Moy, the plain language
of the Ordinance controls. Based on the foregoing, we agree with the trial court that
the Borough’s imposition of the site plan requirement for the proposed monopole use
was appropriate, and Verizon’s argument to the contrary merits no relief.
B. Equitable Estoppel
Verizon next maintains the trial court erred in failing to determine the
Borough intentionally delayed the building permit process past the 180-day deadline
by unlawfully requiring it to first obtain site plan approval, and is therefore equitably
estopped from denying its building permit. (Verizon’s Br., at 16-19.) In response, the
Borough contends that Verizon has waived this issue on appeal, for failure to raise it
in the trial court. (Borough’s Br., at 22.)
Pennsylvania Rule of Appellate Procedure 302(a) provides that “[i]ssues
not raised in the trial court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302. Our Supreme Court has emphasized that, “where the parties fail to
preserve an issue for appeal, an appellate court may not address the issue[.]” Gibraltar
Rock, Inc. v. Department of Environmental Protection, 286 A.3d 713, 724 (Pa. 2022).
Instantly, as argued by the Borough, Verizon did not raise an equitable
estoppel issue in its land use appeal before the trial court. (R.R. at 2a-7a.) The trial
court therefore did not have the opportunity to address this issue in its Rule 1925(a)
opinion, leaving us with no decision to review. Accordingly, Verizon waived its
second argument on appeal.8

8
Moreover, even if we were to address Verizon’s contention, it would not merit relief. To
apply the doctrine of equitable estoppel to a governmental agency such as the Borough, the agency:
“1) must have intentionally or negligently misrepresented some material fact; 2) known or had reason
to know that the other party would justifiably rely on the misrepresentation; and 3) induced the other
party to act to [its] detriment because of [its] justifiable reliance on the misrepresentation.” HUF
Restaurant, Inc. v. Commonwealth, 315 A.3d 205, 215 (Pa. Cmwlth. 2024). Here, we can see no
(Footnote continued on next page…)

8
C. Deemed Approval
Lastly, Verizon maintains that it is entitled to deemed approval of the
proposed monopole use because the Borough Council failed to state its reasons for
denying Verizon’s “land development plan,” in contravention of Section 508(2) of the
MPC. (Verizon’s Br. at 19-22.)
We note at the outset that this appeal concerns Verizon’s challenge to the
Borough’s site plan requirement for the proposed monopole use. However, Section
508 of the MPC, on which Verizon’s argument is based, governs only “Approval of
plats,” which is not at all implicated in this case. The MPC defines the word “Plat,”
as “the map or plan of a subdivision or land development, whether preliminary or
final.” 53 P.S. § 10107. Section 508 provides:

All applications for approval of a plat (other than
those governed by Article VII), whether preliminary or final,
shall be acted upon by the governing body or the planning
agency within such time limits as may be fixed in the
subdivision and land development ordinance but the
governing body or the planning agency shall render its
decision and communicate it to the applicant not later than
90 days following the date of the regular meeting of the
governing body or the planning agency (whichever first
reviews the application) next following the date the
application is filed or after a final order of court remanding
an application, provided that should the said next regular
meeting occur more than 30 days following the filing of the
application or the final order of the court, the said 90-day

evidence whatsoever in the record indicating that the Borough intentionally or negligently
misrepresented a material fact by requiring Verizon to apply for site plan review. On the contrary, as
explained above, the Ordinance expressly requires site plan approval for all uses other than single-
family dwellings in the C-1 District. The Borough’s advising Verizon of this requirement cannot be
considered an affirmative misrepresentation warranting application of the estoppel doctrine.
Accordingly, Verizon’s argument on this issue would not merit relief, even if it were not waived.

9
period shall be measured from the 30th day following the day
the application has been filed.
....

(2) When the application is not approved in terms as filed the
decision shall specify the defects found in the application and
describe the requirements which have not been met and shall,
in each case, cite to the provisions of the statute or ordinance
relied upon.

(3) Failure of the governing body or agency to render a
decision and communicate it to the applicant within the time
and in the manner required herein shall be deemed an
approval of the application in terms as presented unless the
applicant has agreed in writing to an extension of time or
change in the prescribed manner of presentation of
communication of the decision, in which case, failure to meet
the extended time or change in manner of presentation of
communication shall have like effect.
53 P.S. § 10508 (emphasis added). Thus, while Section 508 of the MPC does provide
for deemed approval where a governing body fails to fulfill certain requirements, it
does so only in the context of reviewing applications for plat approval.
Instantly, there is no support in the record for the notion that Verizon’s
proposed monopole use constitutes a “plat,” as defined by the MPC. The approval
process prescribed by Section 508 is therefore wholly inapplicable to the site plan at
issue here, and the Borough was not obligated to follow the plat approval procedure.
Further, as previously noted, Section 374-71 of the Ordinance governs the
process for site plan approval in the Borough and mandates that:

The Planning Commission shall review the application at a
public meeting and shall forward written comments
pertaining thereto to Borough Council. Borough Council
shall act on the application within 60 days of final action by
the Planning Commission or, if the Planning Commission
fails to act, within 120 days of submission of the application.

10
(S.R.R. at 677.)
Accordingly, the applicable Ordinance provides no mechanism for an
applicant to obtain deemed approval of its site plan application. Verizon’s argument
that it is entitled to deemed approval based on an inapplicable MPC provision merits
no relief.
IV. Conclusion
In sum, we affirm the trial court’s order affirming the decision of the
Borough Council concerning Verizon’s proposed monopole use and dismissing
Verizon’s land use appeal.

PATRICIA A. McCULLOUGH, Judge

11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pittsburgh SMSA Limited :
Partnership d/b/a Verizon :
Wireless, :
Appellant :
:
v. : No. 945 C.D. 2025
:
Pleasant Hills Borough Council :

ORDER

AND NOW, this 27th day of March, 2026, the June 30, 2025 order
entered in the Allegheny County Court of Common Pleas is hereby AFFIRMED.

PATRICIA A. McCULLOUGH, Judge