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DERR FLOORING COMPANY v. WHITEMARSH TOWNSHIP ZONING BOARD ADJUSTMENT (12/28/71)

decided: December 28, 1971.

DERR FLOORING COMPANY, INC.
v.
WHITEMARSH TOWNSHIP ZONING BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of Derr Flooring Company from Whitemarsh Township Zoning Board of Adjustment, No. 70-9795.

COUNSEL

Edward Fackenthal, with him Henderson, Wetherill, O'Hey & Horsey, for appellant protestants.

Frank W. Jenkins, with him Jenkins & Acton, for appellee applicant.

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

Author: Kramer

[ 4 Pa. Commw. Page 342]

This is an appeal from an order of the Court of Common Pleas of Montgomery County reversing an order of the Whitemarsh Township Zoning Hearing Board (Board). The Board had dismissed an appeal by Derr Flooring Company (Derr) for a special exception to construct a building to be used, together with the 13.375 acre tract of land, in the operation of a wholesale hardwood flooring and related businesses. Twelve and three-tenths (12.3) acres of the tract in question are situate in Whitemarsh Township in an area zoned as CLI "Campus-type Limited Industrial." The

[ 4 Pa. Commw. Page 343]

    remainder of the acreage is not involved in this case. The land is bounded on three sides by highways along land having either the same zoning classification or a lower classification designated "Limited Industrial." The fourth, or northerly side, is bounded by a railroad track of the Reading Railroad, used for both passenger and freight rail traffic. Across the railroad tracks are located the homes of most of the protestants. These homes are situated in an area zoned for residential use, with some of the homes near the railroad tracks.

The record shows that Derr had entered into an agreement to purchase the tract of land from a residential user, conditioned upon Derr receiving governmental authority to construct a building for its business and an adjunct railroad siding. The finding by the Board that Derr is the owner of the realty in question is not relative to the ultimate issues to be determined by this Court. Derr intends to conduct a wholesale distribution business on the property, whereby it will receive large shipments of hardwood flooring, doors, windows, etc., and thereafter sell and distribute same in smaller wholesale lots to contractors and builders. The record indicates that Derr estimates the average arrival of two freight car deliveries per week and the daily operation of about six trucks. Except for the rail freight car operation which is proposed to be screened from the northern view, all of the other operations will be inside the proposed one hundred thousand square feet building (ninety-five thousand of which will be storage and five thousand square feet for office space). There is no manufacture, processing or millwork involved in Derr's operations. Due to the delivery scheduling by Reading Railroad, the train siding delivery operations were proposed to take place between 10:00 p.m. and 11:30 p.m. two evenings per week.

In 1969, at the suggestion of the zoning officials of the township, Derr made application for a special exception

[ 4 Pa. Commw. Page 344]

    which upon appeal to the Board was denied for the reason that the intended use was specifically excluded by the ordinance then in effect. Derr took no appeal to the court from that determination. The pertinent part of that 1969 ordinance reads as follows: "5. Any use of the same general character as any of the above-permitted uses when authorized as a special exception by the Board of Adjustment, provided that such use shall be subject to such reasonable restrictions as the Board of Adjustment may determine, and further provided that no use shall be permitted which may be noxious or hazardous and provided further that no exterior storage of materials or equipment shall be permitted, except temporary storage which is not noxious or offensive by reason of odor, dust, fumes, smoke, gas, vibration, noise, or risk of fire or explosion and provided that such temporary storage shall not continue for periods of more than seventy-two (72) hours at any one time and provided further that said temporary storage shall be fully concealed by fencing or landscaping, and shall be within an area which could be utilized for building on the lot."

On March 17, 1970, the Board of Supervisors of Whitemarsh Township amended the zoning ordinance so that this same ...


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