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LORD APPEAL (06/27/51)

June 27, 1951

LORD APPEAL


Appeal, No. 127, March T., 1951, from decree of Superior Court, April T., 1949, No. 139, reversing decree of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 1926, in the matter of Appeal of George D. Lord, from order of Board of Adjustment of Borough of Munhall. Decree of Superior Court reversed.

COUNSEL

Paul M. Segal, with him Harry P. Warner Leonard Boreman, Krause & Boreman, and Segal, Smith & Hennessey, for appellant.

E. V. Buckley, with him Mercer & Buckley, for appellee.

Before Drew, C.j., Stern, Stearne, Jones Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 368 Pa. Page 122]

OPINION BY MR. JUSTICE BELL

Does the antenna mast which the petitioner-appellant intends to build in the back yard of his home and which is used for amateur radio communication violate the ordinance of the Borough of Munhall; and if so, does the ordinance violate the Fifth and Fourteenth Amendments to the Constitution of the United States, or the Constitution of Pennsylvania?

Appellant is a licensed amateur radio operator. He had for many years an antenna in and on top of his house; he operates his station solely for pleasure and wants to increase its efficiency so that he can communicate with more distant points and use less power. He proposes to erect in his back yard, which is 50 feet wide and 60 feet deep from the house to the rear boundary line, a mast 32 feet high, with a 39 inch triangular base and a triangular top 12 inches on a side. The mast and beam antenna which it supports will be made of aluminum, set in a concrete base which will be placed 30 feet from his house, 23 feet from one lateral lot line and 27 feet from the other. The mast is self-supporting and will withstand a wind velocity in excess of 70 miles per hour. The court found that the proposed antenna will not appreciably interfere with radio reception by others; and that no question was raised as to the adequacy of the base or support, or as to the strength and durability of the mast.

[ 368 Pa. Page 123]

Appellant applied for a permit to erect this mast in the rear yard of his premises. The permit was refused by the building inspector and on appeal by the Board of Adjustment. So far as the record shows, no testimony was taken by or before the Board of Adjustment. Appellant's application was "denied, as it violates the zoning code in a 'B' Residential District..." There were no findings of fact by the Board of Adjustment, and the return of the Board was so meagre that the Court of Common Pleas to which the appeal was taken properly took testimony as it was specifically authorized to do by the Act of July 10, 1947, P.L. 1621, § 93, 53 P.S. § 15211.7. The Borough Code provides: "Any person aggrieved by any decision of the board of adjustment,... may... appeal to the court of common pleas of the county by petition, duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and specifying the grounds upon which he relies.... If upon the hearing of the appeal it shall appear to the court that testimony is necessary for the proper disposition of the appeal, it may take evidence....The court may reverse, or affirm, in whole or in part, or may modify the decision appealed from as it may appear just and proper. "*fn*

The Court of Common Pleas reversed the order of the Board of Adjustment and directed it to authorize the building permit.The Superior Court reversed the order of the Court of Common Pleas on the ground that the proposed antenna mast violated the Zoning Ordinance, and that the Board of Adjustment's decision was not a manifest abuse of discretion.*fn** From this decision an appeal was taken to this Court.

[ 368 Pa. Page 124]

All of the facts are undisputed; the difference of opinion arises from the inferences, deductions and conclusions which are ...


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