Skinner v. Zoning Bd. of Adjustment of Cherry Hill Tp.

• Decision Date: 26 September 1963
• Docket Number: No. A--610,A--610
• Citation: 80 N.J.Super. 380,193 A.2d 861
• Parties: Richard E. SKINNER, Plaintiff-Respondent, v. ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF CHERRY HILL, and Board of Commissioners of the Township of Cherry Hill, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 380

80 N.J.Super. 380

193 A.2d 861

Richard E. SKINNER, Plaintiff-Respondent, v. ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF CHERRY HILL and Board of Commissioners of the Township of Cherry Hill, Defendants-Appellants.

No. A--610.

Superior Court of New Jersey Appellate Division.

Argued Sept. 9, 1963.

Decided Sept. 26, 1963.

Warren C. Douglas, Camden, for appellants.

William C. Davis, Camden, for respondent (Starr, Summerill & Davis, Camden, attorneys, William C. Davis, Camden, of counsel).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Defendants, municipal boards of the Township of Cherry Hill, appeal from a judgment of the Law Division, ordering the township building inspector and zoning officer to issue a building permit to plaintiff, who indulges in the hobby of radio reception and transmission, for the erection of a radio tower and antenna, not to exceed 100 feet in height, on plaintiff's premises in a residential zone of the township, in accordance with a plan submitted in evidence. The judgment requires plaintiff to 'comply with all other applicable ordinances of said Township.'

Plaintiff's application to the local building inspector and to the local board of adjustment had sought permission to erect a tower and antenna of a total height of 102 feet, 8.5 inches, of which the tower height would be 81 feet, 2.5 inches. He does not cross-appeal from the Law Division's limitation of the height of the tower and antenna to 100 feet.

The building inspector had refused the permit because the proposed location of this radio tower would be in a residential zone and he deemed such use not permissible in that zone.

On appeal to the board of adjustment, plaintiff maintained that (1) the proposed radio tower and antenna was an accessory use permitted in a residential zone; (2) the Federal Government, by the issuance of rules and regulations pertaining not only to the erection and maintenance of radio antennas but also to the licensing of radio amateurs, had pre-empted this field of governmental regulation so as to preclude the municipal government from intruding upon this subject matter; (3) in the alternative, if his first two positions were not upheld by the board, a variance from the terms of the ordinance should be granted to permit the construction. The board of adjustment ruled adversely to plaintiff, finding that the proposed tower was not an accessory use 'because an antenna of this nature is not customarily incidental to a dwelling in a residential neighborhood'; that there are areas in the township where an antenna of this type could be constructed, and that the contention that the local board did not have jurisdiction over this matter because the Federal Government had already pre-empted this field was without basis in law and fact. It grounded its refusal to grant the variance upon plaintiff's failure to establish any undue hardship, because there are areas in the township where an antenna of this nature could be constructed; that an antenna of this nature would depreciate property values of the abutting properties and would damage neighboring properties and possibly cause physical injury, if it were to fall; and that 'this antenna with its connecting guide lines would create an attractive nuisance for the children in the neighborhood.' For these reasons, it found that the granting of the requested variance would substantially impair the intent and purpose of the zoning ordinance and accordingly denied the application.

The primary question involved herein is whether a radio tower for use by an amateur as a hobby constitutes an 'accessory use' within a residential zone so as to be permissible without the need for a variance. The Law Division so found, relying upon Wright v. Vogt, 7 N.J. 1, 80 A.2d 108 (1951). We agree with its conclusion as to that aspect of the case, because Wright v. Vogt expressly so declared, holding that an amateur's radio tower, used by him in the pursuit of his hobby, was an accessory use and 'customarily incidental' to the enjoyment of a residential property. The ordinance in question permits accessory uses in a residential zone and defines an accessory use or building as: 'A subordinate use or building the purpose of which is customarily incidental to the main use or building and on the same lot.' Similar language involved in the ordinance in Wright v. Vogt was interpreted to permit a radio tower and antenna, 60 feet in height. See also Borough of Chatham v. Donaldson, 69 N.J.Super. 277, 282, 174 A.2d 213, 216 (App.Div.1961), in which we said:

'Use by a family of a home under our customs includes more than simple use of a house and grounds for food and shelter. It also includes its use for private religious, educational, cultural and Recreational advantages of the family. * * * Pursuit of a hobby is clearly customarily a part of recreational activities. As long as the pursuit thereof is not of such a nature, or to such an extent, as to impair the residential character of the neighborhood, it cannot be supposed a zoning ordinance was intended to prevent it.'

Our neighboring states take opposite views as to whether these radio towers used by amateurs to indulge their hobby constitute permissible accessory uses of residential property. Appeal of Lord, 368 Pa. 121, 81 A.2d 533 (Sup.Ct.1951), held that such a tower, 32 feet high, was an accessory use and that the local board of adjustment should not have denied the permit. In accord, see Village of St. Louis Park v. Casey, 218 Minn. 394, 16 N.W.2d 459, 155 A.L.R. 1128 (Sup.Ct.1944), approving as an accessory use of a plot in a residential district erection of two radio poles, with revolving directional antennae, one of the poles being 60 feet high set in a concrete foundation 10 or 12 feet deep and supported by three guy wires anchored to iron posts two of which were situated at the front corners of the lot and the third toward the rear of the lot. However, a majority of the court in Presnell v. Leslie, 3 N.Y.2d 384, 165 N.Y.S.2d 488, 144 N.E.2d 381 (Ct.App.1957), held that, on the record, petitioner had failed to establish that a proposed 44-foot rotary beam antenna tower was an accessory use customarily incidental to a highly classified residential area.

Despite these conflicting views, which point up the debatable character of the issue, we find our own Supreme Court's ruling in Wright v. Vogt controlling and determine that the erection of such a radio tower in a residential zone for use by an amateur as a hobby is a permissible accessory use.

Defendants maintain that Wright v. Vogt is distinguishable on its facts from the present case because the zoning ordinance in that case made no reference to the erection of radio towers anywhere in the municipality, where as the zoning ordinance in this case permits radio towers and antennas not to exceed 100 feet in height in Highway Business Zone B--2, Shopping Center Business Zone B--3 and Restricted Industrial Zone IR. They contend that this local legislation discloses an intent that radio towers should be permitted in the municipality only in the specific zones designated and to the height limited, thus eliminating them entirely from residential districts. They also point to the fact that section 602(3), which section deals with permitted uses in a residential zone, provides:

'Accessory uses on the same lot and customarily incidental to the permitted dwelling unit shall not include a business but may include:

(a) Private Garage

(b) Swimming Pool

(c) Tool House.'

From this language they conclude that the local legislative intent was not to consider radio towers as an accessory use in a residential zone.

The express provision in Cherry Hill's 1960 zoning ordinances Permitting radio towers and antennas in specified business zones and in an industrial zone where, presumably, they may be utilized for business purposes, does not clearly evidence an intent by the municipality to preclude their erection in a residential zone as an accessory use for a non-business purpose, such as an amateur's pursuit of his hobby as a radio enthusiast. In legal contemplation, the officials of Cherry Hill knew, when they adopted the zoning ordinances of 1960, of the Supreme Court's decision in Wright v. Vogt and could have expressly prohibited such radio towers as an accessory use or, at least, could have reasonably limited their height as an accessory use in a residential zone, where they have limited the height of the residential buildings to 35 feet. Instead, they failed to do so. By incorporating language in the 1960 zoning ordinance substantially identical to that previously construed nine years earlier in Wright v. Vogt, it is reasonable to conclude that the municipality intended such radio towers to be a permissible accessory use of residential property, in the absence of any clear expression to the contrary.

The 1960 Cherry Hill ordinance made it clear that an accessory use in a residential zone may include a private garage, a swimming pool and a tool house, but we do not regard the express inclusion of those three items as an intended exclusion of all other accessory uses. No contention is made that plaintiff's contemplated use of this radio tower is for any business purposes. Other than the pleasure derived by him from this hobby, plaintiff, as a member of the Radio Amateur Civil Emergency Service, a voluntary service established by the Federal Government, would use this tower and his radio equipment as a prime communications channel for civil defense. He is also, incidentally, a Deputy Civil Defense Director of Cherry Hill.

The second question to be resolved is whether height limitations set forth in the ordinance limiting 'buildings' in this R--2 residence zone to a maximum height of 35 feet and certain specified exceptions to the height limitations, have applicability here. Thus, section 510 of the...