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CAPLAN v. BENSALEM TOWNSHIP ZONING BOARD ADJUSTMENT (05/26/58)

May 26, 1958

CAPLAN
v.
BENSALEM TOWNSHIP ZONING BOARD OF ADJUSTMENT, APPELLANT.



Appeals, Nos. 102 and 103, January T., 1958, from order of Court of Common Pleas of Bucks County, May T., 1956, No. 37, in case of Irving H. Caplan, trading as Bol-D-Kap Tire Company v. Bensalem Township Zoning Board of Adjustment. Order reversed.

COUNSEL

Chester Thomas Cyzio, with him John H. Wood, Jr., and William Vincent Mullin, for appellants.

William J. Carlin, for appellee.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 393 Pa. Page 21]

OPINION BY MR. JUSTICE MUSMANNO

In June, 1956, Irving H. Caplan purchased from the Cornwells Fire Co. No. 1, in Bensalem Township, Bucks County, the building which the firemen had occupied as a fire house. Trading under the name of Bol-D-Kap Tire Company, Caplan moved into the building with tools, equipment and machinery and entered upon the business of retreading and recapping automobile tires. The zoning officer of the township, after

[ 393 Pa. Page 22]

    application made by Caplan for a permit to conduct such a business, refused the application, asserting that Caplan's business contravened against section 601 of the local zoning ordinance. Caplan appealed to the township board of adjustment which, after a full hearing, dismissed the appeal and affirmed refusal of the permit. He then petitioned the Court of Common Pleas of Bucks County for a writ of certiorari. The court issued the writ and brought up the entire record of the proceedings before the board. On that record the court reversed the decision of the board; and the board appealed to this Court.

Since the plaintiff's business place is located in a district which has been zoned commercial, Caplan contends that the service he renders falls logically and legally within section 601 of article VI of the zoning ordinance which provides that in "C-General Commercial District" "A building may be erected or used, and a lot may be used or occupied, for any of the following purposes and no other: ... 6. Public garage, service station, automobile sales agency, parking garage or lot, provided all facilities are located and all services are conducted on the lot. ... 12. Any use of the same general character as any of the above permitted uses provided that no use which is noxious or hazardous shall be permitted except in accordance with Section 1108."

Is the recapping and retreading of tires an operation normally associated with a public garage or service station? The lower court found that it is. However, the very explanation offered by the court in reversing the board is proof to the contrary. Said the court: "After the used tire is inspected to determine its suitability for refinishing, it is mounted on a buffing stand or wheel and abraded by braked contact with another spiked wheel to remove some of the remnants of the

[ 393 Pa. Page 23]

    old tread and also to provide a roughened surface for the adhesive cement which is next applied. Prefashioned strips of synthetic rubber, manufactured elsewhere, are then placed around the tire to form the material for the new tread. The tire is next placed in a molding machine where it remains for one hour under conditions of high pressure and temperature by which the built-up material is fashioned, cured and made to adhere to the body of the old ...


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