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BEAVER GASOLINE COMPANY v. OSBORNE BOROUGH ET AL. (12/29/71)

decided: December 29, 1971.

BEAVER GASOLINE COMPANY
v.
OSBORNE BOROUGH ET AL., APPELLANTS



Appeal from order of Commonwealth Court, No. 983 of 1970, in re appeal of Beaver Gasoline Company, and Antonio DiGirolamo and Nancy DiGirolamo, and Santo DiGirolamo and Rosemarie DiGirolamo v. Zoning Hearing Board of the Borough of Osborne, and the Borough of Osborne.

COUNSEL

William Howard Colbert, with him Robert A. Rundle, and Wright and Rundle, for appellants.

James W. Dunn, Jr., for appellees.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Jones. Mr. Justice Pomeroy joins in this concurring opinion.

Author: O'brien

[ 445 Pa. Page 572]

The DiGirolamos are the owners of a parcel of land situate in the Borough of Osborne, Allegheny County, which lies within an area of the borough zoned "C" Commercial. They entered into an agreement of sale with the corporate appellee, Beaver Gasoline Company, contingent upon the issuance of a building permit for the construction of a gasoline service station on the parcel in question. Osborne Borough is divided into three areas for zoning purposes. There is an "A" Residential zoning district, a "B" Residential zoning district, and a "C" Commercial district. The "C" Commercial district exists in the southwest corner of the

[ 445 Pa. Page 573]

    township and permits certain commercial uses enumerated in the ordinance. Also permitted in the "C" Commercial district are those uses which are permitted in the residential districts, but the residential use districts are restricted to single family dwellings, churches, educational institutions, libraries, professional offices and certain accessory signboards. The only essential difference between the restrictions placed on the "A" Residential districts and the "B" Residential districts concerns lot size. The ordinance then provides that all other uses in the "C" Commercial district are prohibited "including therein specifically the following: (1) gasoline service stations. . . ." It is then clear, and it is undisputed, that the zoning ordinance of the Borough of Osborne prohibits gasoline service stations within the territorial limits of the borough.

Beaver applied for a permit to erect a gasoline service station, and the permit was refused on the basis of the prohibition against gasoline service stations in "C" Commercial districts. An appeal to the borough's zoning hearing board ensued, which consisted, to all practical intents and purposes, of a submission by Beaver of its application and building plan and its statement that the sole issue before the zoning board was the constitutionality of the ordinance. The borough took the position that it was not required to explain the basis for the refusal of the building permit and the record, therefore, contains no further evidence. The zoning board affirmed the refusal of the building permit, having concluded that the prohibition contained in the ordinance was binding. An appeal was taken to the Court of Common Pleas of Allegheny County, which took no additional evidence and affirmed the action of the zoning hearing board. On appeal, the Commonwealth Court, in an opinion by Judge Crumlish, reversed, holding the prohibition in the ordinance to be

[ 445 Pa. Page 574]

    unconstitutional. Judge Manderino and Judge Kramer filed concurring opinions, and President Judge Bowman and Judge Mencer filed dissenting opinions. We allowed an appeal and specifically directed the parties "to brief and argue the question of whether a municipality should bear the initial burden of demonstrating the constitutionality of a zoning ordinance which completely prohibits an otherwise legitimate business operation in the municipality."

Much has been written in decided cases concerning the burden of proof problem which arises when a litigant seeks to have legislation, whether by statute or ordinance, declared unconstitutional. We have long held that a challenge to the constitutionality of a zoning ordinance must overcome a presumption of its validity. Nat. Land & I. Co. v. Easttown Twp. Bd. of A., 419 Pa. 504, 215 A.2d 597 (1965), Eller v. Board of Adjustment, 414 Pa. 1, 198 A.2d 863 (1964), Anstine v. Zoning Bd. of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963). However, we have also held that a zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confined that business to a certain area in the municipality. Exton Quarries, Inc. v. Zoning Bd. of Adj., 425 Pa. 43, 228 A.2d 169 (1967), Ammon R. Smith Auto Co. Appeal, 423 Pa. 493, 223 A.2d 683 (1966), Norate Corp., Inc. v. Zoning Bd. of Adj., 417 Pa. 397, 207 A.2d 890 (1965). In Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), we held that the ...


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