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BORON OIL COMPANY v. CITY FRANKLIN (05/14/71)

decided: May 14, 1971.

BORON OIL COMPANY
v.
CITY OF FRANKLIN



Appeal from the order of the Court of Common Pleas of Venango County, Civil Action -- Law, A.D. No. 10 January Term, 1969, in case of Boron Oil Company v. City of Franklin.

COUNSEL

John M. Wolford, with him Daniel Brocki and Dunn, Wolford & Sesler, for appellant.

Raymond S. Woodard, with him Ralph L. Montgomery, Jr., and Dale, Woodard & Montgomery, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers. Dissenting Opinion by Judge Manderino.

Author: Rogers

[ 2 Pa. Commw. Page 153]

This is an appeal from an order of the Court of Common Pleas of Venango County, dismissing an appeal from an order and decision of a Zoning Hearing Board.

The appellant, Boron Oil Company, the equitable owner of a lot located at the corner of 13th and Liberty

[ 2 Pa. Commw. Page 154]

Streets in the City of Franklin, Venango County, desired to raze an existing office building and gasoline service station*fn1 and erect a new gasoline service station. The lot in question is located at a busy intersection and within a zoning district called Central Business District. In such district, a gasoline service station is a permitted use provided that there is no existing gasoline service station within 200 feet from any point on the lot line of the proposed new location. There was an existing service station within 50 feet of the lot line of Boron's proposed new station and, for this reason, its building permit was denied. Boron appealed to the Zoning Hearing Board.*fn2

Before the Zoning Hearing Board, appellant contended that the permit should be issued for three reasons: that the existing facility located within 50 feet was not in fact a gasoline station, that a variance should be granted, and that the applicable zoning regulation was unconstitutional. The first two reasons are properly not pressed in this appeal, there being ample evidence that there is an existing gasoline service station within 50 feet and there being no basis for the grant of a variance.

The Zoning Hearing Board conducted a full day's hearing. The appellant's evidence before the Board

[ 2 Pa. Commw. Page 155]

    consisted only of the testimony of a representative of Boron who described the proposed gasoline service station. Twelve persons, of whom ten were called as witnesses for the City, testified in opposition to the grant of the permit. Included among these were a member of the City Planning Commission, a member of City Council, the code enforcement officer, the fire chief and the police chief. The testimony of these witnesses tended to show that the regulation in question was recommended to and enacted by City Council for the purpose of preventing or reducing the threat to public health and safety from hazard of fire and explosion and from the danger of vehicular and pedestrian traffic accidents. Factually, this evidence established: that the central business district of the City is designated a fire zone by official action of City Council because the buildings there located are old and particularly susceptible to damage by fire; that four major highways converge to funnel vehicular traffic through Liberty Street, creating the heaviest concentration of vehicle traffic and highest incidence of vehicular and pedestrian accidents at the intersection of 13th and Liberty; ...


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