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PRESTON E. FUNK AND EVA M. FUNK v. TOWNSHIP BENSALEM (02/03/75)

decided: February 3, 1975.

PRESTON E. FUNK AND EVA M. FUNK, APPELLANTS,
v.
TOWNSHIP OF BENSALEM, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Township of Bensalem v. Preston E. Funk and Eva M. Funk, No. 2410 May Term, 1970.

COUNSEL

Leonard Sarner, with him Sarner, Borofsky & Stein, for appellants.

Henry F. Huhn, with him Donald B. McCoy, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 17 Pa. Commw. Page 205]

Preston E. Funk and Eva M. Funk (Appellants) appeal from a final decree of the Court of Common Pleas of Bucks County which dismissed their exceptions to and adopted a decree nisi ordering the removal of a 229 foot

[ 17 Pa. Commw. Page 206]

    high radio antenna tower which violated the applicable height regulations of the zoning ordinance of Bensalem Township (Appellee).

The pertinent facts are not here disputed. Appellants are the resident-owners of a property located within an R-2 Residential district subject to the Bensalem Township Zoning Ordinance. Section 503 of the ordinance provides "[n]o building other than a farm building shall exceed thirty-five (35) feet in height, provided that such height limits may be exceeded by one (1) foot for each foot by which the width of each side yard is increased, beyond minimum side yard requirements, up to a maximum height of fifty (50) feet." Section 1600 of the ordinance defines "building" to include the word "structure." In April 1969, Appellants began construction of a free-standing radio antenna tower, incidental to the husband-Appellant's "ham" radio operations. Upon completion in July 1969, the tower measured 229 feet in height, with a triangular base 18 feet to the side supporting the steel structure. No applications for the required zoning and building permits were made until the tower was completed. When application to Appellee's zoning officer was made, the permits were denied because of the non-compliance with the height limitations of Section 503. On July 17, 1969, a cease and desist order was issued and served upon Appellants. They then appealed the zoning officer's action to the Bensalem Zoning Board of Adjustment (zoning board) contending that 1) the zoning ordinance could not constitutionally prohibit amateur radio antenna towers of a height necessary to their proper function; 2) their antenna tower was not a structure subject to the zoning ordinance or the height limitations contained therein; or, alternatively 3) they were entitled to either a special exception or a variance. On March 24, 1970, the zoning board found the radio antenna tower to be subject to the zoning ordinance, and denied all relief sought. No appeal was taken from this decision.

[ 17 Pa. Commw. Page 207]

The instant complaint in equity, seeking removal of the offending tower, was filed by Appellee on July 13, 1970, pursuant to Section 617 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, 53 P.S. ยง 10617 (MPC), and Section 1601 of the zoning ordinance. On August 24, 1972, the Chancellor, President Judge Satterthwaite of the court below, found Appellants in violation of height limitations of Section 503, and ordered removal of the antenna tower. The decree nisi was made final on January 4, 1974, and this appeal followed.

Before this Court, Appellants contend 1) that its radio antenna tower is a permissible accessory use, and 2) that the height limitations of Section 503 of the zoning ordinance do not apply to a self-supporting radio antenna tower. Although the court below ably dismissed both contentions, it is unnecessary for us to reach these arguments as neither is a legally cognizable defense to an equity action brought by a municipality to enforce a zoning ordinance since they involve questions which can only be determined by a zoning appeal. Muncy Borough v. Stein, 440 Pa. 503, 270 A.2d 213 (1970); Honey Brook Township v. Alenovitz, 430 Pa. 614, 243 A.2d 330 (1968); Hilltown Township v. Mager, 6 Pa. Commonwealth Ct. 90, 293 A.2d 631 (1972), appeal dismissed, 411 U.S. 979 (1973). In Philadelphia v. Budney, 396 Pa. 87, 151 A.2d 780 (1959), the City brought an action in equity to enjoin defendant's junkyard operation in violation of the zoning ordinance. Prior to the enforcement action, defendant's appeals to the zoning board and the Court of Common Pleas on a variance or nonconforming use theory were dismissed and further appeals on ...


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