Appeal from order of Court of Common Pleas of Delaware County, No. 9561 of 1968, in re Appeal of Frank Facciolo et al.
John T. Mulligan, with him Domenic D. Jerome, for appellant.
Guy G. deFuria, with him Fronefield, deFuria and Petrikin, for appellees.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Jones took no part in the consideration or decision of this case.
This is an appeal from an order of the Court of Common Pleas of Delaware County reversing an order of the Township of Marple Zoning Board of Adjustment, granting a special exception and holding a section of the zoning ordinance unconstitutional.
Frank Facciolo and William Barrett, appellees, own property on the northwest corner of the intersection of Paxon Hollow and Sproul Roads which is in an area zoned B-Business. They desire to build a gasoline service station on that property. The Marple Township Zoning Ordinance, Article X, section 1001c, permits a gasoline service station in a B-Business district if a special exception is granted therefor. In addition Article XIII, section 1307c(5) provides that in cases such as this "Each building must be at least 250 feet from any residential building, church or school and any existing use of the same type."
After the building inspector refused to grant a permit on the grounds (a) that a special exception was required and (b) that the building on the proposed service station would be within 250 feet of a residence, appellees appealed to the Zoning Board of Adjustment. They sought a special exception and in addition relief from the provisions of section 1307c(5) on the theory that it was not a reasonable exercise of the police power and therefore unconstitutional.*fn1 After a hearing, the Board refused to grant a special exception and upheld the validity of the distance requirement.
On appeal the Court of Common Pleas of Delaware County reversed. The court found that the Board did not have sufficient reason to refuse the special exception and also that the distance requirement was unconstitutional as being arbitrary, discriminatory and having no relation to the objects of the police power. Hershone Appeal, 55 Del. Co. 352 (1968); Atlantic Richfield Company v. Erie, 43 Pa. D. & C. 2d 504 (1967).
When there is an application for a special exception, the burden is on those who would deny the exception to show that the granting of such exception would be adverse to the public interest. Delaware County Community College Appeal, 435 Pa. 264, 254 A.2d 641 (1969); Jacobi v. Zoning Board of Adjustment, 413 Pa. 286, 290, 196 A.2d 742 (1964). The test to be applied by this Court when the proceeding before the court below was based entirely on the record established before the board is whether the board clearly abused its discretion or committed an error of law. Atria, Inc. v. Mount Lebanon Township Board of Adjustment, 438 Pa. 317, 264 A.2d 609 (1970); Pyzdrowski v. Pgh. Bd. of Adju., 437 Pa. 481, 263 A.2d 426 (1970); Rieder Appeal, 410 Pa. 420, 188 A.2d 756 (1963). When the court below hears additional testimony, our function on appeal is to determine whether the court rather than the board abused its discretion or committed an error of law. Mason v. Schaefer, 410 Pa. 239, 189 A.2d 178 (1963).
Initially we must determine which test we should apply in reviewing the record in this action. In conjunction with the appeal to the court below the parties filed a stipulation which in part states: "And Now, July 14, 1969, it is stipulated and agreed . . . that in accordance with the Order of this Court dated April 8, 1969, under which the parties were given leave to introduce ...