I cannot agree that the erection of the radio poles and wires as shown herein is a use customarily incident to a residential district. The apparatus consists of one pole 30 feet in height, located at about the center of lot 22, on which are rotary antennae, and a 60-foot pole set in a concrete foundation 10 or 12 feet deep at the front building line of the lot. This pole is supported by three guy wires extending in three directions from the pole and anchored to eight-inch iron posts eight feet high, two of which are situated at the front corners of the lot and the third toward the rear of the lot. Defendant described the tallest pole as follows:
"Constructed of lumber two inches by eight inches, bolted together with angle irons supporting each piece, connecting the bolts to each other piece. It is mounted in cement ten feet, twelve feet down in the ground, sunk in cement, with a cement base weighing probably a thousand pounds; and it is properly guyed with wires, and figured on a very mathematical formula to stand a wind pressure of 400 miles an hour."
Both of these poles are used to support antennae for receiving and transmitting radio messages in connection with apparatus maintained by defendant in his home situated on an adjacent lot. *Page 400 Wires from the radio antennae extend across electric power and telephone wires at the rear of the two lots. The radio apparatus maintained by defendant in his home cost $10,000, and consists of a transmitter maintained on three relay racks, each 5 1/2 feet high and 18 inches wide, and a receiving apparatus comprising three receivers on a long table about six feet long. This station is capable of sending and receiving messages over the entire world. Defendant was operating radio schools in Minneapolis, Detroit, and Cleveland. He trained radio operators by correspondence as a part of the courses offered by the school. The record is silent as to whether the students in the school received part of their training at defendant's residence, and whether the equipment located there was used in connection with his business. Therefore, it cannot be found from the testimony that defendant violated the zoning ordinance by operating a business. It seems clear to me, however, from a glance at the accompanying photograph, that the apparatus was not ordinarily incident to a residential use.
In the majority opinion judicial notice is taken "of the custom of householders to use outside antennae or aerials for radio reception." The type of equipment here involved, it seems to me, is a far cry from the type ordinarily used in residences. The statement in the majority opinion that, "While many aerials are attached to poles above the roofs of dwellings, and even to trees, the use of separate poles or masts for this purpose still prevails when a householder seeks the best reception. Such equipment is certainly customarily incident to a residential establishment," is, in my opinion, not justified by the record. I do not believe the testimony bears out the conclusion that the radio apparatus used by defendant was such as was ordinarily incident to a residential purpose. William H. Martin, president of the village council, testified that he knew of no similar apparatus in the entire village of St. Louis Park except at a residence located in an industrial center, where there was situated a large lumberyard. Defendant testified that there were about 12 amateur radio broadcasting stations in St. Louis *Page 401
Park, but the evidence is barren of any description of apparatus used in connection therewith, with the exception of two places. One, referred to in the testimony of Mr. Martin, is located adjacent to the lumberyard, and another residence is described by defendant as having a telegraph pole about 55 to 60 feet in height equipped with rotary beam antennae. In other words, defendant could point to but two other residences in the entire village having similar equipment, and one of them is located in an industrial area. Can it be said, then, as a matter of law upon this testimony that the apparatus is ordinarily incident to residential purposes? The 1940 *Page 402 census of St. Louis Park shows a population of 7,737.2 It seems to me that such a use so insignificant in proportion to the population indicates that the equipment was not such as is customarily incident to residential purposes.
We must not lose sight of the fact, moreover, that we are considering this case as a court of review. The lower court found that the provision of the zoning ordinance in question was violated. Implicit in the finding is the fact that the equipment was not such as is ordinarily incident to residential use. In reviewing the case, it should not be determined upon the basis of how we think it ought to be decided, but rather whether reasonable men might differ as to whether the equipment was ordinarily incident to residential purposes.
A broad discretion rests with the legislative body in the adoption of zoning ordinances. If the reasonableness of the ordinance is debatable, courts will not interfere with legislative discretion. State v. Modern Box Makers, Inc.217 Minn. 41, 13 N.W.2d 731; Smith, Zoning Law and Practice, § 58. These zoning ordinances have as one of their salutary purposes the restriction of residential districts to uses reasonably consistent with such a locality. It is my conviction that by holding the use of this type of radio equipment not violative of the ordinance upon the record before us, we are usurping the function of the trier of fact and thwarting the enforcement of a reasonable and salutary provision of the zoning ordinance of St. Louis Park.
I think the order should be affirmed.
2 Sixteenth Census of United States, 1940, Vol. II, Part 4, p. 107.