11 Pa. Commw. 474 | Pa. Commw. Ct. | 1974
Opinion by
This is an appeal filed by West Whiteland Township (Township) from an order of the Court of Common Pleas of Chester County (filed in the Office of the Prothonotary of that county on December 18, 1972) in which the “decision” of the West Whiteland Township Zoning Hearing Board (Board) was reversed. In effect, the lower court’s order reversed the Board’s decision not to issue to Exton Materials, Inc. (Exton) a building permit for the erection and operation of a bituminous concrete plant.
The pertinent facts are that Exton, as the equitable owner under an agreement of sale, filed an application for a building permit for the erection and operation of a bituminous concrete plant on its plot of ground consisting of approximately 20.8 acres. The ground is unused and contains an abandoned stone quarry which has been abandoned for more than 50 years. The land in question is located in what is known as an “1-1 Industrial District” under the Township’s Zoning Ordinance. Pertinent provisions of the Ordinance are found in Section 41.01, which read as follows:
“Uses. In any 1-1 district, land buildings or premises shall be used for only one or more of the following uses or any other use of the same general character which does not constitute a nuisance or is not offensive by reason of the emission of objectionable odor, noise, heat, smoke, dust, fumes, gas, vibration or waterborne waste, when permitted by the Board of Adjustment as a special exception: . . .
“2. Assembly from components including the assembly of radios, television and similar electronic products.
*476 “3. Finishing processes requiring heat.” (Emphasis added.)
The following sections of the Ordinance contain the usual provisions establishing standards and conditions upon which special exceptions may be granted. Exton made application for a building permit and the Township’s zoning officer denied same, whereupon Ex-ton filed an appeal with the Board wherein it alleged that the intended use came within the provisions of the quoted provisions of Section 41.01 of the Zoning Ordinance. In the alternative, Exton requested a variance and alleged that if its intended use was not permitted under the Ordinance, such denial would be unconstitutional.
The Board held extensive hearings on the matter and concluded that the intended use did not come within the provisions of the Zoning Ordinance for a special exception. Having determined that the intended use would be adverse to the public health, safety and welfare of the community, the Board “denied” Exton’s “request” for the building permit. Exton then appealed to the lower court, which entered its opinion without receiving additional testimony or evidence. The lower court also concluded that Exton did not come within the provisions for a special exception under the quoted provisions of Section 41.01. The lower court then held that since the Zoning Ordinance did not make any provisions for a bituminous concrete plant, such usage was thereby prohibited in violation of the Supreme Court’s decision in Girsh Appeal, 437 Pa. 237, 262 A. 2d 395 (1970). In reaching this conclusion, the lower court referred to Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A. 2d 501 (1971), wherein the Supreme Court remanded the case to the lower court and ultimately to the Zoning Board of Adjustment in order that the municipality be permitted to present evidence justifying
The Board in this case held an additional hearing at which the municipality was given an opportunity to present additional evidence supporting its exclusion of Exton’s proposed use of its property. This additional record was transmitted to the lower court, and thereafter in its “Supplemental Opinion,” the court concluded that the Township had not justified its prohibition of the intended use and held that the decision of the Board was reversed. The Township then filed this appeal.
Interestingly the Township, in its appeal to this Court, contrary to the holding of its Board, takes the position that Exton’s intended use falls within the special exception provisions of its Zoning Ordinance. This position is contrary to the testimony of its Township Supervisor who testified that the intended use did not fall within the special exceptions of Section 41.01 of the Zoning Ordinance. At this point, it should be noted that this is also Exton’s position in the appeal before this Court. The Township contends that a bituminous concrete plant use was never banned nor intended to be banned on a township-wide basis in its Zoning Ordinance. The Township argues, however, that the permit should not be granted because Exton has failed to prove that it meets the standards required for a special exception under the Zoning Ordinance.
In a case where the court below took no additional testimony or received additional evidence, the review by this Court is limited to the narrow issue of whether the board committed a manifest abuse of discretion or an error of law. See Village 2 at New Hope, Inc. Appeals, 429 Pa. 626, 241 A. 2d 81 (1968); Di Santo v. Zoning Board of Adjustment, 410 Pa. 331, 189 A. 2d 135 (1963); Zoning Hearing Board v. Konyk, 5 Pa. Commonwealth Ct. 466, 290 A. 2d 715 (1972).
The Township contends that Exton has failed to meet the requirements in several areas. First, it contends that Exton failed to meet the building height re
On the subject of noise, the Board found:
“21. The noise of the forced air system is comparable to a rushing train type of noise. The air is necessary for combustion.
“22. Other noise is emanated from the dropping of the materials and mix through the various stages of the operation.”
Neither finding supports the Township contention that the Board found sufficient evidence of noise to conclude that the Township or protesting neighbors met the burden of proving that the possible noise coming from Exton’s intended use would be injurious to the public health, welfare or safety.
On the subject of traffic, the Board only cursorily mentioned a traffic problem in its discussion; it made no finding of fact on the subject. Our very careful reading of the entire record permits us to conclude that the Township and protesting neighbors have failed to prove any detriment to the public health, welfare and safety of the community which may result from traffic.
On the subject of air pollution, the only findings which the Board made which may be applicable to this issue are that (1) there was no alarm system with respect to the emission of particulates, and (2) the plant
Since we have held that Exton’s intended use comes within the provisions of the special exceptions under Section 41.01, it is not necessary for us to pass upon the constitutionality of the Ordinance which was raised by Exton and passed upon by the lower court. We believe it is important to note, however, that the Township was given an additional opportunity under the initial opinion of the lower court, to prove that Exton’s intended use would be injurious to the public health, welfare and safety of the community. We have no reservation that the lower court was correct in its supplemental opinion when it observed that the Township had failed to present any additional evidence which would support such a contention.
In summary then, it is our holding that both the Board and the court below were in error in their determination that Exton’s intended use did not come within the special exception provisions of Section 41.01. In reviewing the entire record and the findings and conclusions of the Board, we have concluded that Exton lias met the requirements of the Zoning Ordinance and that the Township and the protesting neighbors have not met their burden of proving that the intended use
Order
And Now, this 18th day of January, 1974, based upon the above Opinion, the Order of the Court of Common Pleas of Chester County filed December 18, 1972, in the above-captioned matter is affirmed insofar as it reverses the decision of the West Whiteland Township Zoning Hearing Board dated November 10, 1971; however, it is hereby ordered that the matter be remanded to the court below for the purpose of issuing a final order directing the Board to issue a building permit as applied for by Exton Materials, Inc., subject to all of the zoning regulations applicable to a building permit issued under the special exceptions provisions of the Zoning Ordinance of West Whiteland Township, all of which will be in conformity with the Opinion filed herewith.
Section 12.10(58): “Structure. A ‘structure’ is anything constructed or erected with a fixed location on the ground, or attached to something having a fixed location on the ground.”