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MIGNATTI APPEAL. (03/13/61)

March 13, 1961

MIGNATTI APPEAL.


Appeals, Nos. 126, 127, 128, 129, 130 and 131, Jan. T., 1961, from order of Court of Common Pleas of Montgomery County, Feb. T., 1960, No. 23, in re appeal of August W. Mignatti et al. from decision of board of adjustment of Lower Moreland Township. Order reversed.

COUNSEL

Donald A. Gallagher, with him James N. Peck, and Waters, Cooper & Gallagher, for appellants.

James B. Doak, with him LaBrum and Doak, and Fox, Differ, DiGiacomo & Lowe, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Cohen

[ 403 Pa. Page 145]

OPINION BY MR. JUSTICE COHEN.

Appellees are the owners of a tract of land in Lower Moreland Township, Montgomery County. A quarry and stone crushing plant is operated on this tract as a nonconforming use antedating the township zoning ordinance which zoned this area as a "L" residential area, the highest classification contained in the ordinance.

Appellees sought a special exception from the Board of Adjustment of Lower Moreland Township to permit the erection, maintenance and operation of a bituminous concrete mixing plant in order to mix the stone removed from the quarry with asphalt imported onto the premises.

The Board, after a public hearing, denied the petition, concluding that the operation of a bituminous concrete plant would not constitute an enlargement or expansion of the existing nonconforming use, and would be a use different than what was originally contemplated. Appellees then appealed to the Court of Common Pleas of Montgomery County which court reversed the Board and held that the proposed plant was merely accessory to, and a reasonable expansion of, the existing nonconforming use. The court also held that the proposed use was a change of the same classification as the existing use and therefore permissible

[ 403 Pa. Page 146]

    as a special exception under section 801(2) of the township zoning ordinance. No further testimony having been taken by the lower court, it was their duty (as it is ours) only to determine if the Board committed a manifest abuse of discretion or an error of law. Kotzin v. Plymouth Twp. Zoning Board of Adjustment, 395 Pa. 125, 149 A.2d 116 (1959).

In reversing the action of the board the lower court relied on a similar unappealed case in the Court of Common Pleas of Montgomery County to substantiate their position - (M&M Stone Company v. Lower Salford Township Zoning Board of Adjustment, 16 Pa. D. & C. 2d 584 (1958)). The court in that case allowed bituminous concrete to be produced on the premises as an accessory use, relying on Cheswick Borough v. Bechman, 352 Pa. 79, 42 A.2d 60 (1945), where the court held that a rotary screen was reasonably accessory to screen and sift sand and loam which had been extracted from the property.

The Court of Common Pleas of Montgomery County failed to distinguish Cheswick from the case before it in either the m&m s/tone case, supra, or in this case. In Cheswick, it was reasonable for this court to find that a rotary screen is not an addition of such magnitude or difference in kind to amount to a change in, or unreasonable expansion of, activities, but a mere expansion depending on an existing use. However, in the present case, the proposed addition encompasses phases and operations actually severable from the industry of quarrying and stone crushing. It represents an additional processing complex, requiring a capital expenditure of $170,000, covering an area roughly ninety by ninety feet and attaining a height of forty-eight feet. The ...


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