Cablevision—Division of Sammons Communications, Inc. v. Zoning Hearing Board

13 Pa. Commw. 232 | Pa. Commw. Ct. | 1974

Opinion by

Judge Mencer,

This appeal is from the dismissal by the Court of Common Pleas of Northampton County of an appeal by Cablevision — Division of Sammons Communications, Inc. (Cablevision), from a decision of tbe Zoning Hearing Board of tbe City of Easton (Board). Tbe Board’s decision revoked a permit issued to Cablevision to erect a television tower to be used for the purpose of providing cable television service to residents of tbe City of Easton (City) and surrounding communities.

In 1961 tbe City leased a portion of its water reservoir property located along tbe northern boundary of tbe City to a predecessor of Cablevision for tbe erection and installation of a television antenna. An 85-foot-high tower was erected and remained at tbe site until November 1971 when Cablevision began construction of a new tower. Cablevision bad obtained approval of tbe plans and specifications for the new tower by the City’s engineer and, under tbe terms of a lease, tbe City bad specifically authorized tbe erection of a new tower to a height of 160 feet.

Cablevision bad expended approximately $20,000 in erecting tbe tower to a height of approximately 140 feet when, on January 17, 1972, tbe zoning officer notified Cablevision that a zoning permit Avas required incident to tbe tower’s being constructed. Tbe following day Cablevision made application for tbe permit which was granted by tbe zoning officer.

On January 20, 1972, Dr. and Mrs. Joseph Urban, nonresidents of tbe City and owners of real estate adjoining tbe tower site but situate in tbe Tovmship of Forks, filed an appeal from tbe zoning officer’s issuance of tbe permit to Cablevision with tbe Board. FolloAving a bearing, tbe Board revoked tbe permit and Cablevision appealed to tbe court below which entered an order dismissing tbe appeal and affirming tbe order of tbe Board. Cablevision filed this appeal and Ave reverse.

Before tbe Board, the court below, and here, Cable-vision has contended that Dr. and Mrs. Urban are Avithout standing to appeal the issuance of the permit by the zoning officer. The zoning ordinance applicable here provides in Section 1311.01: “Appeals to the Zoning Board of Adjustment may be taken by any person aggrieved or by any city official affected by any decision of the Zoning Administrator.”

The key words are “any person aggrieved.” The ordinance fails to define this term. However, in Louden Sill Farm, Inc. v. Milk Control Commission, 420 Pa. 548, 217 A. 2d 735 (1966), our Supreme Court considered these same three key words relative to appeals under the Milk Control Law, Act of April 28, 1937, P. L. 417, 31 P.S. §700j-101 et seq., and stated: “Who is a ‘person aggrieved’ has been explained many times by this Court. In Pennsylvania Commercial Drivers Conference et al. v. Pennsylvania Milk Control Commission, 360 Pa. 477, 62 A. 2d 9 (1948), this Court reiterated what it had said in Lansdowne Borough Board of Adjustment’s Appeal, 313 Pa. 523, 525, 170 Atl. 867, 868 (1934): ‘ “A cardinal principle, which applies alike to every person desiring to appeal, whether a party to the record or not, is that he must have a direct interest in the subject matter of the particular litigation, otherwise he can have no standing to appeal. And not only must a party desiring to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial.” ’ To be thus aggrieved the interest of the party must be adversely affected by the order, judgment or decree appealed from. Thus in Atlee Estate, 406 Pa. 528, 532, 178 A. 2d 722, 724 (1962), this Court said: ‘A party is “aggrieved” when he is directly and adversely affected by a judgment, decree or order and has some pecuniary interest which is thereby injuriously affected.’ ” 420 Pa. at 550-51, 217 A. 2d at 736-37.

We have carefully scrutinized this record, and we fail to find therein evidence that would support Dr. and Mrs. Urban’s standing to question the propriety of the issuance of the permit to Cablevision. The requisite direct interest in the issuance of the permit must be substantial. Under the facts here, the prior 85-foot tower was not visible from the Urban property, but the new 160-foot tower is visible. Mrs. Urban described it as “ugly” and stated that its unsightliness affects the enjoyment of her property. Her aesthetic evaluation, although understandable, cannot be equated with a substantial interest in the issuance of the permit in question.

Further, we hold that a person who owns property contiguous to land which is the subject of a zoning decision, but outside the territory of the municipality in which the subject property is situated, is not an aggrieved person entitled to perfect an appeal from such a decision. See Clark v. City of Colorado Springs, 162 Colo. 593, 428 P. 2d 359 (1967); Kimberly v. Town of Madison, 127 Conn. 409, 17 A. 2d 504 (1941); Wood v. Freeman, 43 Misc. 2d 616, 251 N.Y.S. 2d 996 (1964), aff’d, 24 A.D. 2d 704, 262 N.Y.S. 2d 431 (1965). Accord, 3 R. Anderson, American Law of Zoning §21.06 (1968), at 568, where that textwriter states: “A person who owns property contiguous to land which is the subject of a zoning decision, but outside the territory of the municipality in which the subject property is situated, is not an aggrieved person entitled to perfect an appeal.”

In view of our conclusion that Dr. and Mrs. Urban were without standing to prosecute an appeal from the issuance of the permit to Cablevision, it is, therefore, unnecessary to discuss the other questions raised upon this appeal.

Order reversed, with direction to the Court of Common Pleas of Northampton County to remand the matter back to tbe Zoning Hearing Board of tbe City of Easton for action not inconsistent with this opinion.

Judges Bogers and Blatt concur in result.