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MIGNATTI CONSTRUCTION COMPANY (09/14/71)

decided: September 14, 1971.

MIGNATTI CONSTRUCTION COMPANY, INC.'S ZONING APPLICATION


Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Action -- Law, No. 2110, March Term, 1970, in case of In Re: Application of Mignatti Construction Company, Inc., from the Bucks County Zoning Hearing Board.

COUNSEL

Jeffrey F. Bahls, with him C. William Freed, Jr. and Freed & Freed, for appellants.

Paul W. Callahan, with him William F. Fox and Fox, Differ, Mazer & Callahan, for appellee.

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

Author: Per Curiam

[ 3 Pa. Commw. Page 244]

This case is a zoning appeal from a decision of the Bucks County Court of Common Pleas, dated November 23, 1970, after it had heard the matter en banc, reversing a decision of the Bucks County Zoning Hearing Board.

Recognizing that the trier of fact is uniquely situated to best resolve questions of credibility, we nevertheless conclude that the lower court has correctly decided this case. We therefore adopt the able opinion of Judge Garb but feel compelled to comment on two cases advanced by appellants:

(1) Blair v. Board of Adjustment, 403 Pa. 105, 169 A.2d 49 (1961), where the Supreme Court approved consideration of ". . . the effect of the proposed use upon the character of the immediate neighborhood so as to conserve the value of existing buildings and encourage the most appropriate use of the land." The Court there dealt with the cluttering overkill of five service stations within 350 feet of one another. Here, "West Rockhill Township is primarily a rural community with a large portion of its area consisting of open undeveloped land and forest. Approximately 3,987 acres, or 37% of the township area is forested. Most of this forest land is situated in the northern and northwestern areas of the township [the subject property is in the south-central portion of the township].

[ 3 Pa. Commw. Page 245]

The southern portion of the township contains most of the agricultural land. Developed land (land devoted to housing, commerce, industry, and public and semi-public uses) accounts for only about 1,158 acres [the total township area is 10,786 acres], or 10% of the total township area." This description from the West Rockhill Township Development Plan, page 16, was written in 1961, and, although somewhat dated, fairly approximates the township's character today. Because of imperfect sub-soil drainage, agriculture is difficult in the township. Forty percent of the township, including the subject property, is zoned Residential-Agriculture. Only within this classified area is quarrying permitted, and the then applicable Section 310-b of the zoning ordinance stated as one of the purposes of such a classification "to provide alternative land uses for farmers who have chosen to discontinue agriculture as a source of income, and to provide areas for necessary land uses, such as extractive industries, which by the nature of their operation involve large land areas and which otherwise would interfere with land development in areas of more intense usage." (Emphasis added.) The "Future Land Use" section of the Development Plan also suggested, among other things, a sanitary land fill operation for the general area in question.

We note, however, that the communities of Tylersport, Montgomery County, and Naceville, Montgomery-Bucks County (with approximate populations of 300 and 35 respectively), lie within one-half mile of the proposed quarry site to the southeast and, with the prevailing wind direction from the northwest nine months of the year, are particularly susceptible to noise and dust pollution should Mignatti's precautionary efforts fail. Nevertheless, considering the relative location of the proposed site and the general character of the area, when "[i]t is the conclusion of the Board that

[ 3 Pa. Commw. Page 246]

    the applicant has met, or could meet, all of the requirements of the ordinance," we agree with appellee that "[i]t is inconsistent on the one hand to regulate on the basis that the use is not to be permitted in a densely developed area and on the other hand to deny the use in a rural area on the basis that the activity is inconsistent with a rural area."

(2) Caldwell v. Northampton Township Zoning Board of Adjustment, 18 Bucks Co. L. Rep. 573 (1968), 1 Pa. Commonwealth Ct. 222, 273 A.2d 557 (1971), where this court determined that sufficient evidence was presented to the Board to justify its refusal to grant the requested special exception. There the Board found a failure to meet ordinance standards in that there was no evidence of the adequacy of the water supply to the premises, no percolation evidence, no evidence submitted concerning design and capabilities of a sewage disposal plant, and no evidence that a sewage disposal system had been submitted to or approved by the proper public authorities. It was also determined that the project was to be constructed on a rear lot in violation of zoning ordinance frontage requirements. Here the Board specifically found that appellee has met or could meet all of the requirements of the applicable zoning ordinance.

The appeal is dismissed and the order of the lower court is affirmed upon the opinion of Judge Garb, written for the Court of Common Pleas of Bucks County, reported at 20 Bucks Co. L. Rep. 481 (1970).

Judge Garb's opinion follows:

"Appellant herein filed an application with the Bucks County Zoning Hearing Board requesting a special exception to permit the use of a certain 80.6 acre parcel of land as a stone quarry. The tract in question is located in West Rockhill Township, Bucks ...


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