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ROBERT J. GATTI AND MANN HOMES v. ZONING HEARING BOARD SALISBURY TOWNSHIP ET AL. (06/29/88)

decided: June 29, 1988.

ROBERT J. GATTI AND MANN HOMES, INC., APPELLANTS
v.
ZONING HEARING BOARD OF SALISBURY TOWNSHIP ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lehigh County, in the case of Robert J. Gatti and Mann Homes, Inc. v. Zoning Hearing Board of Salisbury Township, No. 86-C-1882.

COUNSEL

Lee D. Mescolotto, Eschbach & Mescolotto, for appellants.

William G. Malkames, with him, Mark Malkames, for appellees.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 117 Pa. Commw. Page 401]

This is an appeal from the decision of the Court of Common Pleas of Lehigh County which affirmed in part and remanded in part the decision of the Zoning Hearing Board of Salisbury Township (Board). The trial court affirmed with respect to the construction of an addition to a broadcasting building owned by Maranatha Broadcasting Company (appellee), and remanded the decision with respect to the construction of a new broadcasting tower by appellee.

Appellee is a local radio and communication station. Its principals, Richard C. and JoAnna M. Dean, sought in conjunction with appellee, permission to expand the business in two ways: (1) a permit to erect both a temporary 20' by 60' structure and a permanent addition measuring 60' by 90' to its broadcasting building pursuant to the plan submitted; and (2) approval to erect a new 640', free-standing tower, while shortening its present 500' guy-wire supported tower to a height of 250'. Appellees' application for a building permit with the Salisbury Township Zoning Officer was denied. Appellee appealed this decision to the Board and a hearing was held on July 1, 1986. Testimony was presented as to the present use of the property as well as to the fact that appellee had received variances in the past with respect to the use of property.

It was stipulated by counsel for appellee that the expansion desired would be slightly in excess of the 25% permitted under Section 704.1 of the current Salisbury Township Zoning Ordinance (Ordinance).*fn1 Presenting

[ 117 Pa. Commw. Page 402]

    its various FCC licenses for broadcasting, appellee submitted that its business had increased and that the expansion was necessary to accommodate this growth. Appellees' proposed expansion would utilize surrounding land which is owned by Richard Dean, who is President of the broadcasting station and also an appellee in this matter. This land, which encircles the broadcasting station's acreage in a "U" shape, is referred to as the Dean property.

Appellant, Robert J. Gatti (Gatti), testified on his own behalf and on behalf of Mann Homes, Inc., of which he is the principal. His testimony indicated that he had purchased acreage neighboring appellee's premises approximately ten years ago for the purpose of constructing his own residence and for future development. Gatti, the sole objector, owns approximately thirteen acres in this area. The majority of his testimony centered on the impact of the new tower which was to be constructed. Gatti presented little testimony as to any detriment to be incurred as a result of the expansion of the building. At one point he even noted that the building had not been a problem in the past and that he did not anticipate it presenting a problem in the future due to the amount of vegetation between the two properties.

The Board granted the variance request on July 1, 1986, and gave appellee permission to expand the building and to construct a 640' tower upon the condition that the existing tower would be removed within six months of the completion and satisfactory operation of the new tower. Appeal was taken by the appellants. The trial court entered its order affirming and remanding on August 19, 1987. Appellants further appealed to this Court.

The appellants raise three issues on appeal: (1) whether the Board, as affirmed by the trial court, erred in its classification of ...


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