37 Pa. Commw. 258 | Pa. Commw. Ct. | 1978
Opinion by
The Appellant, BP Oil, Inc., appeals here from an order of the Court of Common Pleas of Delaware
Our scope of review when the lower court has not taken additional evidence is to determine whether or not the Board abused its discretion or committed an error of law. Schaffer v. Zoning Hearing Board, 32 Pa. Commonwealth Ct. 261, 378 A.2d 1054 (1977).
The Appellant argues first that the 1964 amendment to the zoning ordinance is invalid because a zoning map was never prepared correctly designating the “A” and “B” commercial districts nor was there
The second question presented is whether or not the ordinance is exclusionary because gasoline sta
Claims involving exclusion of commercial uses, however, can seldom be sustained on the basis of percentage figures alone; some analysis of the present and projected needs of the municipality and some proof that the needs of the community residents are not being adequately served must be present. Sullivan v. Board of Supervisors, 22 Pa. Commonwealth Ct. 318, 348 A.2d 464 (1975). And we agree with the
While it may be inherently discriminatory for a township to totally exclude a use from its borders, we fail to see any analogy by which we could reason that a legitimately appropriated area for a specific use which has been saturated is in the same posture as a total prohibition of that use within the municipality.
Groff Appeal, 1 Pa. Commonwealth Ct. 439, 442, 274 A.2d 574, 575 (1971); Benham v. Board of Supervisors, supra, 22 Pa. Commonwealth Ct. at 252-53, 349 A.2d at 488-89.
We believe therefore that as a matter of law this ordinance is not exclusionary.
The Appellant argues alternatively that it was entitled to a variance allowing it to use the property for a gasoline station. The standards to be applied in determining whether or not a zoning variance was properly denied are set forth in Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10912. In holding that the Appellant was not entitled to a variance, the Board cited the testimony in the record that the property could be developed without a use
The order of the lower court is, therefore, affirmed.
Order
And Now, this 16th day of August, 1978, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is hereby affirmed.
The Appellant also applied and was denied a special exception, an issue not raised here.
This ease involved a township which had amended its zoning ordinance without delineating boundaries of the new district but required property owners to apply on a case by case basis for their property to be rezoned within that district. The Supreme Court held that such a scheme was invalid as the “antithesis of zoning ‘in accordance with a comprehensive plan’.” Eves, supra, 401 Pa. at 217, 164 A.2d at 11.