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LOWER MORELAND TOWNSHIP v. SHELL OIL COMPANY AND WHITE (09/09/71)

decided: September 9, 1971.

LOWER MORELAND TOWNSHIP
v.
SHELL OIL COMPANY AND WHITE



Appeal from the order of the Court of Common Pleas of Montgomery County, No. 70-07021 in case of Shell Oil Company and Charles F. White v. Zoning Hearing Board of Lower Moreland Township.

COUNSEL

Charles K. Plotnick, with him Jerome H. Harwitz, Solicitor, and Miller, Harwitz & Plotnick, for appellant.

Marlyn F. Smith, with him High, Swartz, Roberts & Seidel, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino and Rogers. Opinion by Judge Crumlish, Jr. Judge Rogers concurs in result only.

Author: Crumlish

[ 3 Pa. Commw. Page 260]

The Zoning Hearing Board of Lower Moreland Township, Montgomery County, rejected appellant's application which would change an existing nonconforming use as allowed by special exception under the Township Zoning Ordinance. On appeal, the Court of Common Pleas of Montgomery County reversed the Board's decision. We affirm the lower court.

"Where, as in this case, the court below took no additional testimony, our review is limited to one narrow issue. Did the Board commit a manifest abuse of discretion or an error of law? Village 2 at New Hope, Inc. Appeals, 429 Pa. 626, 241 A.2d 81 (1968); Di Santo v. Zoning Board of Adjustment, 410 Pa. 331, 189 A.2d 135 (1963); Burgoon v. Zoning Hearing Bd., 2 Pa. Commonwealth Ct. 238 (1971)." Rees v. Zoning Hearing Board, 2 Pa. Commonwealth Ct. 551 (1971). So, notwithstanding the decision of the court below, our function is to independently determine the validity of the Board's action.

Appellees are the owner and conditional lessee of a presently nonconforming commercial use in a residential

[ 3 Pa. Commw. Page 261]

    section of the Township. The existing use is a myriad of uses, all nonconforming, which include a gasoline station, a small grocery and a beer distributorship. Strange as it may seem, they are all housed in the same building. These enterprises, with the exception of the gasoline concession which is leased out and only pumps gasoline, are all operated by appellee Charles F. White. In addition, all three operations are in vigorous competition in their respective markets. For example, the gasoline concession pumps the greatest monthly gallonage of any station in the Township.

It is appellees' intention to discontinue dispensing beer and groceries, demolish the structure and erect a modern automotive service station. What they want to do is to abandon two of the three nonconforming uses and limit the operation to the third.

Application for this change was made pursuant to Article X, Section 1001(2) of the Lower Moreland Township Zoning Ordinance which provides in part: "A non-conforming use of a building or land may be changed to another non-conforming use of the same or more restricted classification when authorized as a special exception by the Board of Adjustment after public hearing. . . ." The Board after taking testimony denied appellees' application for the special exception, and on appeal the Common Pleas Court of Montgomery County reversed. Hence, this appeal to us.

The Board's opinion gives the following reasons for its decision: "Such use would be of a less restricted classification which is not authorized by Section 1001(2). Enlarging the size of the gas station and adding minor repairs to the permitted uses of the premises clearly would increase the degree of nonconformance with the surrounding 'L' Residence District as compared to the present use of the premises as a ...


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