Appeal from the decision of the Court of Common Pleas of Montgomery County, at No. 69-13690, in case of In re: Appeal of Michael J. Stefonic from the decision of the Zoning Hearing Board of Upper Gwynedd Township. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania, by the Supreme Court of Pennsylvania. Decision reversed.
Paul W. Callahan, with him Fox, Differ, and DiGiacomo, for appellant.
Albert R. Subers, with him Bean, DeAngelis, Kaufmann and Giangiulio, for appellee.
President Judge Bowman and Judges Crumlish, Kramer, Wilkinson, Manderino, Mencer and Barbieri. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Mencer.
This case involves an application to the Zoning Hearing Board for a special exception in a commercial district to construct a gasoline service station. Such a special exception is authorized by the zoning ordinance where the property is located in Upper Gwynedd Township, Montgomery County. The Zoning Hearing Board held a hearing and denied the application. The applicant appealed to the Court of Common Pleas of Montgomery County on the record made before the Zoning Hearing Board. The Common Pleas Court affirmed the order of the Zoning Hearing Board. We must reverse.
There does not seem to be any dispute on the facts. There is no substantial dispute on the law since both parties appear to rely on the same leading cases.
It was in the application of the law to these facts wherein the Zoning Hearing Board and the lower court fell into error. The evidence offered, when considered in the light of the well established line of decisions of the Pennsylvania Supreme Court, will not support the finding that the proposed gasoline service station will damage the health, safety, morals and welfare of the community. Without such legally sufficient evidence,
the application for the special exception must be granted.
It is important to have in mind, as pointed out by the court below, that the applicant does not have the burden of proving that the grant of the exception will not injure the health, safety, morals, or welfare of the community. Rather, the burden is on the Board to prove that the grant of the exception would be injurious. Delaware County Community College Appeal, 435 Pa. 264, 254 A.2d 641 (1969); Jacobi v. Zoning Board of Adjustment, 413 Pa. 286, 196 A.2d 742 (1964). In a concurring opinion in the Jacobi case, Chief Justice Bell recognizes this rule, albeit criticizing it as illogical. The opposite is true in the instance of an application for a variance, where the burden of proof is on the applicant. See Kline Zoning Case, 395 Pa. 122, 148 A.2d 915 (1959). Illogical as it may seem, this distinction is made in other states. See cases collected in an article entitled "Zoning Regulations as to Gasoline Filling Stations", 75 A.L.R. 2d 168 (1961). See also Michie, The Special Exception in Zoning in Pennsylvania -- 1963, 36 Temple Law Quarterly 298 (1963).
Here the applicant offered testimony that admittedly brought him within the requirements for an exception. On the important element of safety, applicant's testimony showed that there would not be any increase in traffic but rather, in fact, the traffic safety element on this corner would be improved. No evidence was offered by any witness to the contrary. Herein lies the important distinction between this case and Facciolo and Barrett v. Board of Adjustment, No. 248 Jan. T. 1970 (S. Ct. Pa., filed Oct. 9, 1970) and Blair v. Board of Adjustment, 403 Pa. 105, 169 ...