Appeal from the Order of the Court of Common Pleas of Bucks County in the case of In Re: Appeal of Edward Caplan from the Northampton Township Zoning Hearing Board and Ronald J. Smolow and Nan S. Smolow, Intervenors, No. 80-11995-10-5.
Donald B. McCoy, McCoy & Auchinleck, P.C., for appellant.
Ronald J. Smolow, Groen & Smolow, P.C., for appellees/intervenors.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 83 Pa. Commw. Page 218]
Edward Caplan has appealed a judicial order, entered by the Court of Common Pleas of Bucks County, which affirmed a zoning-board decision requiring him to modify a radio tower he had erected on his property.
In August 1979, Mr. Caplan and his wife purchased a single-family residence in an "R-2" district of Northampton Township (Township), Bucks County. About a month later, in September of 1979, Mr. Caplan applied to the Township's zoning officer for a permit to erect a 70-foot-high radio tower in the rear of the Caplan property. Mr. Caplan is a "ham" radio operator. The specifications set forth in Caplan's application indicated that the radio tower would be supported by a single concrete block located in the center of his rear yard, and that the location of the block would not violate the open-space requirements of the Township's Zoning Ordinance. The application also represented that the total cost of the tower would be about $350.
On October 8, 1979, the zoning officer issued Caplan a permit, which, by its terms, allowed him to erect what had been described in the application: a 70-foot radio tower based in a concrete block, at an estimated cost of $350. Upon receiving his building permit, Mr. Caplan displayed it on the side door of his house -- where it was not clearly visible from the street. The permit remained so displayed until the middle of November 1979, when it was removed completely. By that time Caplan had erected his tower to a height of 20 feet. Although he had other sections of the tower lying on the ground at the site, he did no further work on the tower between November 1979 and June of 1980.
[ 83 Pa. Commw. Page 219]
On January 16, 1980, Ronald and Nan Smolow purchased a residence near the Caplans. The Smolows moved into their home on January 24, 1980. Several months later, in June 1980, Mr. Caplan resumed work on his tower; and proceeded to raise it to a height of 90 feet. He also added to the tower several sets of supporting guy-wires, which he moored to a series of concrete bases that had been installed level with the ground at various points in the yard. Mr. Caplan had the further intention of attaching, to the top of the tower, a horizontal boom having a length of up to 46 feet.*fn1
On June 18, 1980, Ronald Smolow made a complaint to the zoning officer about Caplan's radio tower. Asserting that the tower violated several provisions of the Township's Zoning Ordinance, Smolow asked the zoning officer to revoke Caplan's building permit. When the zoning officer refused that request, Mr. and Mrs. Smolow filed an appeal to the Township's Zoning Hearing Board (Board). That appeal was filed on June 27, 1980.
At some time just prior to the Smolows' appeal to the Board, Caplan reduced the height of his tower to 70 feet -- the height set forth in the permit. However, the appeal by the Smolows asserted that the tower, even at 70 feet, violated the height restrictions of the Zoning Ordinance. They further asserted, inter alia, that the locations of the guy-wire bases violated the setback requirements for rear yards and side yards; and that Caplan's application for the permit was false or misleading. The ...