2 Pa. Commw. 52 | Pa. Commw. Ct. | 1971
Opinion
The appeal in this zoning case requires us to decide whether or not a landlocked drive-in theatre operator may be denied the right to have his patrons use an access road, created by perpetual easement for ingress and regress. The lower court, after taking testimony, ruled against the drive-in theatre operator, affirming the decision of the Zoning Board. For the reasons that will appear, we reverse.
Appellants are Taged Incorporated and Thomas G-. Zaimes, President of Taged Incorporated (Taged). Appellees are the Zoning Board of Adjustment of the Borough of Monroeville (Board) and Intervenors, Edward Shields and Rose Shields, his wife (Shields). The interest of Shields is as property owners of land on which they reside and which borders on the access road involved in this case. Until these proceedings began, access for theatre patrons has been over a strip of land leased from Anna Wukich (Wukich).
The following facts and circumstances are undisputed : On August 26, 1958 the theatre parcel was approved for rezoning to C-2 (commercial use) and the rezoning took place by ordinance dated September 9, 1958. On November 1, 1958 the predecessors to Taged entered into a lease for a term of 15 years for the premises in question which, as has been previously noted,
Shortly prior to November 1, 1958, when the main lease for the theatre area was executed, Taged’s predecessors executed a lease for a similar term of 15 years (from November 1, 1958 to October 31, 1973) with Anna Wukich for a strip of land to be used for a theatre access route to Mosside Boulevard. At that time Mosside Boulevard was a more heavily traveled highway than Northern Pike Road and may still be. Taged or its predecessor defaulted on the lease with Wukich and Wukich has since refused to grant leases for more than a term of one year. Taged is thus subject to the uncontrolled decision of Wukich whether or not she will renew the lease which provides the present means of ingress and regress to the theatre. In addition, Wukich has pursued a practice of requiring rental increases. The rental payments include tax charges which must be paid by Taged in whatever amounts are assessed including tax increases without limit. Also there is evidence that Wukich has made it difficult or impossible to grade and otherwise deal with the tract for theatre purposes which are incident to use of the land for the entrance and exit of patrons.
On December 3, 1968, Taged applied for the exception involved herein. Urging that it found its arrange
A 1962 rezoning of the area resulted in a changed commercial use being prescribed for both the theatre area and the access road but this new form of commercial zoning is of a limited type known as “L-Special Use District”, in which a drive-in theatre is not a permitted use. It is conceded, however, that Taged’s use remains legal as a nonconforming use in the “L” Commercial district, and that the intervenors’ residential use on the land adjacent to the right-of-way, which they claim the right to use jointly with Taged, is also
It is not contradicted that Taged’s application to the Zoning Board was for a special exception and that no request for a variance was ever made to the zoning authorities. The lower court, however, in its de novo handling of Taged’s appeal treated the case as one in which an application for a variance was made in addition to a request for a special exception. Since it is clear to us that no question of variance has been properly raised or is subject to consideration on this appeal, the question of whether a variance could or should have been granted will not be considered.
. As we have noted, the reasons advanced in support of their decisions by the Zoning Board and the lower court are not the same. Basically, the Zoning Board appeared to be ruling against a special exception “to relocate the public entrance to the theatre on Northern Pike.” The denial was on the ground that the requirements for granting the exception “were not satisfied”. Reasons given were: (1) the necessity for a change in the public entrance to the Theatre has not been established; (2) a lease on the Wukich property is available for the continuation of the present Theatre entrance on M!oss Side Blvd.; and (3) structural alterations to the ticket booth for reasons of safety have not been ordered by a public official.
Turning now to the lower court’s decision from which this appeal is taken, we find that the Court’s concern is not so much with whether or not the marquee and ticket booth may be moved, but rather is almost entirely concerned with whether or not Taged may use its easement at all to provide an access road for the theatre business. We can understand this broadened scope of the lower court’s consideration, since any question as to the location of the theatre’s entrance facilities would be totally moot if the road could not be used by patrons. It was within this reach of the court’s concern that the scope of consideration was broadened even further to include the question of variance which was not then an issue. We note further that the lower court flatly based the denial of Taged’s appeal upon “. . . policies acknowledged by our Supreme Court as to the limitation and legal and reasonable termination of a nonconforming use. .. .” The court ruled that to allow the theatre to use the right-of-way would constitute a form of nonconforming use expansion not open to Taged either “. . . as lessee nor in any right they could possibly have standing in the shoes of those whom the Pennsylvania Turnpike Authority intended not to be landlocked . . and that the application could not “. . . possibly be accommodated on this record within any of the uses legally recognized in the pertinent zoning provisions, not as a variance, not as a special exception, not as a conditional use....” In our view we need not consider many of the troublesome questions which were of deep concern to the lower court, since we hold that upon the record in this case Taged has
First of all, the vital importance of á landowner’s property right in an easement of access for ingress and regress as in this ease, where his land is otherwise landlocked, is too obvious for discussion. Indeed, such an easement is so vitally important as a part of the owner’s property interest in his land that the denial of the right to use it can result in the deprivation of* every property right and use that attaches to his real property ownership. For a Zoning Board to deny the easement’s use which is necessary to the exercise of' the main use which that Zoning Board has authorized- and made legally proper represents a clear abuse of discretion. Even more so do we see error in the decision of the lower court which goes beyond the question at issue, whether or not a special exception should be granted, by also ruling out an unsolicited possible grant by the Zoning Board of a variance which, as we' have noted, was never raised as an issue before that Board. The existence of the access road easement has been a matter of record since it was granted in 1955,: not only known to the Monroeville authorities, but known and the right-of-way actually used by the intervenors, and known and used by Westinghouse, ' the present owner, which later objected to the use proposed by Taged. This publicly known property right represents a form of access route of a much higher quality than that which was authorized in Rolling Green Golf Club Case, 374 Pa. 450, 97 A. 2d 523 (1953).
In Rolling Oreen, our Supreme Court sustained the right of a property owner who had no easement ■ of way but sought to build a road over its own land to connect with a public road. Rolling Oreen presents a truly striking parallel to this case. There the zoning ordinance for the district in question authorized a “railway passenger station”, but permitted a golf course
Chief Justice Bell stated further: “The right of a property owner to have (or build) a road over his own
In this connection it may be noted that Shields, the intervenors, claim that their right as residents to use the access road would be interfered with by Taged’s use. But their use could also become questionable under the interpretation put upon the zoning ordinance by the lower court, since, as we have noted, the ordinance provides that a residential use is not permitted in an “L” District.
Mir. Chief Justice Bell’s further comments in Bolling Green are pertinent: “Did the present ordinance— which must he strictly construed where it is in derogation of fundamental or common law rights — prohibt this property owner from using part of its land for a driveway? It certainly does not say so either expressly or by clear and necessary implication and therefore it is clear that it did not intend to attempt to deprive a landowner of this important ancient fundamental right. Appellant fails to realize that this is not an application for a variance, i.e., undue or unnecessary hardship; this is not a case where a nonconforming owner wishes to extend or expand his building or plant, or to erect or use a building contrary to the terms of an ordinance. This is a case where, we repeat, a landowner wishes to construct on its own lot a 20-foot driveway
Reliance by the lower court and the appellees upon the Supreme Court case of Atria, Inc. v. Mt. Lebanon Twp. Bd. of Adjv 438 Pa. 317, 264 A. 2d 609 (1970), in our judgment is misplaced. In that case Atria owned and operated a combination grocery store, beer parlor and restaurant “. . . fronting on Beverly Road a four-lane main arterial highway____” The driveway in question was for access to the parking lot provided for the use of business patrons. As has been noted, Atria’s property was not landlocked, but was in a zoned commercial district and fronting on a main highway. Atria had been operating with a rented access route to its parking lot and now sought to use for business purposes an access road to be constructed over the residential premises of one of the owners which abutted the business property in the rear, but which exited on a road in an entirely residential area. In the Court’s opinion sustaining the Board’s denial of the use, the late Mr. Justice Cohen pointed out that Atria had an alternative to the leased roadway, because it “... could gain vehicular access from Beverly Road across its own commercially zoned property. . . .” (Emphasis added) Aside from the controlling fact that the Atria business premises were not landlocked, there is the further difference in this case that Taged’s proposed access road passes through land which not only is not zoned residential, but which is zoned commercial with the same zoning district classification as Taged’s theatre area. It is suggested by appellees that Rolling Green was
We find substantial support for our conclusions in the Supreme Court case of Young M. & W. Heb. Assn, v. Monroeville, 429 Pa. 283, 240 A. 2d 469 (1968). In that, case,' the Hebrew Association applied for. and was granted a “conditional use” of certain land in a “Oné-Pamily Residence” area for a nonprofit recreation project.,..The appeal was taken, because a condition imposed upon the granting of the use was that the sole entrance and exit, to the premises be by an access route which would lead out to a lane at a point close to a U.. S. Steel property, whereas entrance and exit plans for access at other points on the premises in question ;were . disapproved. The late . Mr. Justice MusmanNO,
In that case, the Supreme Court relied upon Rolling Green, quoting also from White’s Appeal, 287 Pa. 259, one of the cases upon which the Court in Rolling Green relied, as follows: “In the case at bar, the borough council admits that it authorized a conditional use of the plaintiff’s property.... Once it obtained the right to use its property for a recreational park, this right could not arbitrarily be taken away from it, even by council. The light of due process still shines, or should, in every court, legislative hall and executive chamber in America.” 429 Pa. at 288.
In reversing, we simply do so on the ground that, upon the record before us, the property rights of Taged in its easement of an access road may not be abridged on the ground that a lease may continue to be available for an alternative route, as to which it has no easement or other property right, and which it may gain or lose at the uncontrolled will or fancy of the lessor in question. We do not pass upon any question concerning the location of a marquee or ticket booth should Taged choose to exercise its legal right to employ the access road in question for its business purposes. We do not pass upon whether or not a variance should be granted for some purpose beyond use for the ingress and regress of patrons of Taged’s theatre operation.
First of all, the “Nomination for the Use of an Access Road” executed by the Pennsylvania Turnpike Commission fixes no such limitation or any other limitation on the use as stated of a “. . . perpetual easement across the land of Edward J. Shields and Rose J. Shields, his wife, in order to provide access. . . .” It is stated simply that the Pennsylvania Turnpike nominates to the landowners in question and their assigns “. . . the free use, liberty and privilege of and passage in and along an access road. . . .” Even if there were such a limitation, however, the claim to maintain such a status when other areas surrounding the parcel of land in question had been legally changed with the march of progress may not be sustained. See Archbishop O’Hara’s Appeal, 389 Pa. 35, 131 A. 2d 587 (1957). Particularly is a claim to maintain the alleged farm use limitation logically untenable when advanced by the Zoning Board which had authorized the theatre operation and other major nonfarming uses. The zoning authorities themselves ordained and are responsible
While the lower court discusses the alleged traffic problem as if the use of Taged’s easement would create such a problem, the record indicates that the major problem is envisioned during regular peak traffic hours and in conjunction with new traffic created by the Westinghouse outlet onto Northern Pike. While it is urged that the drive-in theatre traffic would add to this new traffic, it is not explained how this can happen with Taged’s traffic hours when they are. As we have noted, these hours are at night and on Sunday when Westinghouse traffic should be minimal. Also, Taged’s theatre operation is seasonal, running from April to November, with the higher patron use only in the summer months.
If the Monroeville authorities and Westinghouse envision problems due to additional traffic caused by Taged’s use of its access road, such problems are clearly self-inflicted
Accordingly, the order of the Court of Common Pleas is reversed, and the order of the Board is vacated and the record remanded for disposition consistent with this Opinion.
AppeUee’s own expert witness recommended to the Borough that Westinghouse and Taged use “a common drive”, but Westinghouse’s objection to this was sustained by the Borough authorities. (216a, 224a)