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ROBERT V. NAIMOLI v. ZONING HEARING BOARD TOWNSHIP CHESTER ET AL. (01/28/81)

decided: January 28, 1981.

ROBERT V. NAIMOLI, APPELLANT
v.
ZONING HEARING BOARD OF THE TOWNSHIP OF CHESTER ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Robert V. Naimoli v. Zoning Hearing Board of the Township of Chester, Delaware County, Pennsylvania, No. 79-8203.

COUNSEL

Nicholas J. Emper, with him Murray S. Eckell, Eckell, Sparks, Vadino, Auerbach and Monte, for appellant.

John H. Clark, Jr., for appellee.

Robert B. Surrick, Levy & Surrick, for American Cablevision of Pennsylvania, Inc., intervenor.

Judges Craig, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 56 Pa. Commw. Page 338]

Objector Robert V. Naimoli appeals from an order of the Delaware County Court of Common Pleas which affirmed a decision of the Zoning Hearing Board of Chester Township (board) granting intervenor American Cablevision of Pennsylvania (ACP) a special exception to extend or enlarge a nonconforming use by converting radio facilities to cable television facilities.

Under the Chester Township Planning and Zoning Code (Zoning Code), the property in question is located in an R-3 Residential District in which commercial uses are prohibited. Located on that property, in addition to the Toby Farms Elementary School, is a 245-foot high radio tower which was erected in 1948 and has been continually operated as a radio signal

[ 56 Pa. Commw. Page 339]

    transmission station since that time, which antedated enactment of the Zoning Code, so that the radio facilities constitute a lawful nonconforming use in the R-3 district.

On April 13, 1979, ACP filed an application for a special exception to replace the radio tower with a cable television tower of like height in a different location on the property, and also to construct an earth station*fn1 on the property, thereby giving ACP the ability to receive cable television signals. The board granted the special exception, and the objector appealed to the lower court. ACP intervened in the appeal and filed a motion to quash which asserted that the objector lacked standing to appeal the board's decision. The common pleas court agreed that the objector lacked standing, but also dismissed the appeal on the merits.

On appeal to this court, the objector contends that the lower court erred in concluding that the objector was not a party to the proceedings before the board, so as to lack standing to appeal. We agree.

The Pennsylvania Municipalities Planning Code (MPC)*fn2 permits any party aggrieved by a decision of a zoning hearing board to appeal that decision to court. Section 1007 of the MPC, 53 P.S. ยง 11007. Section 908(3) of ...


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