25 Pa. Commw. 129 | Pa. Commw. Ct. | 1976
Opinion by
This is an appeal from a decision of the Court of Common Pleas of Bucks County, sitting en banc,
The basic facts in this case are not in dispute. Neshaminy purchased an unused gas station in the “General Commercial” zoning district of the Township and converted it to a small retail tire and service establishment. It desired to expand its facilities and applied for a building permit for an addition designed to end 40 feet from its rear property line, which abuts a residential district. The permit was granted on April 22, 1974. However, on May 6, 1974, the permit was revoked by the zoning officer. The reason given for the revocation was that amendatory Ordinance No. 173 required a 75-foot setback of commercial uses which abut residential zones.
Neshaminy appealed the revocation and alternatively, requested a variance before the Zoning Hearing Board of Bensalem Township (Board). The Board, however, affirmed the zoning officer’s revocation of the permit and denied the variance. An appeal was taken to the Court of Common Pleas of Bucks County which interpreted the ordinance at issue here in favor of Neshaminy. However, it felt that another issue had been left unresolved and remanded to the Board for action consistent with its opinion. The second issue is not raised before this Court; hence, we deal only with the issue of the interpretation of Ordinance No. 173.
We affirm and adopt, with slight additions, the relevant portion of Judge Walsh’s opinion for the court below, which follows.
“The amendatory ordinance in question is titled:
An Ordinance Amending the Zoning Ordinance oe December 6, 1954, of the Township of Bensalem by Amending Certain Portions of the R-A, R-l, R-2, R-3, R-4, M-H, C-D, C-H, M-2 Districts and Article XI General Regulations and Article XVI Definitions to Re-Define and Define Certain Terms, To Add New Definitions, and Correct Certain Discrepancies Contained Therein.
“Among several amendments in Ordinance No. 173 is an amendment to Section 1600 under ‘Definition of Terms’ whereby the amendatory ordinance adds a new subsection (25 f) as follows:
“f. Yard Adjacent to Residence District.
“1. Whenever any commercial district abuts any rural or residence district boundary line, a yard shall be provided which shall not be less than seventy-five (75) feet in width, measured from such boundary line.
“The zoning hearing board appears to have construed this provision to apply to the yard dimensional requirements in all of the eight major district classifications. The appellant reasons this amendment is intended to apply only to those portions of the basic ordinance wherein the phrase ‘Yard Adjacent to Residence District’
“Rules of statutory construction are applicable to statutes and ordinances alike. Donahue v. Zoning Board of Adjustment, 412 Pa. 332, 334 (1963). The polestar for construction of a statute or ordinance is the intention of the legislative body. Clearview Bowling Center v. Hanover Borough, 430 Pa. 579, 582 (1968). An ordinance, like a statute must be construed if possible to give effect to all of its provisions. Fidler v. Zoning Board, 408 Pa. 260, 267 (1962). The title and preamble of an ordinance are a part thereof, and must be considered in construing the ordinance. Starkey v. Philadelphia, 397 Pa. 512, 517 (1959). Where a statute or ordinance defines a word or phrase therein the court is bound thereby although such definitions may be different from ordinary usage. Hughes v. Pittsburgh, 379 Pa. 145, 148 (1954). Whenever a part of a statute is amended the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time. Statutory Construction Act of 1972, Act of December 6, 1972, P.L. 1339, 1 Pa. C.S. §1953.
“Applying the foregoing principles we conclude that the amendatory definition ‘Yard Adjacent to Residence District’ was intended to supply a definition of a phrase used in the original ordinance but not defined therein. It follows that the definition was in
Order affirmed.
Although the trial court’s order only remands the matter to the Zoning Hearing Board “for further proceedings consistent with the foregoing opinion” and does not specifically reverse the Board’s
It is apparent that “General Commercial” districts are not mentioned in the title.
This phrase does not appear in the section of the ordinance controlling General Commercial uses.