Appeal from the Order of the Court of Common Pleas of Delaware County, in case of In Re: Appeal of William F. Gaebel and Virginia F. Gaebel, his wife, No. 9482 of 1970.
Lawrence E. Wood, for appellants.
Sondra K. Slade for Laws, Ravacon and Gilbert, intervenors, with her Edward H. P. Fronefield, Solicitor for Thornbury Township, intervenor, with them Fronefield, DeFuria & Petrikin, and Crawford & Diamond.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Manderino. Judge Crumlish concurs in decision only.
This appeal arises from a decision of the Court of Common Pleas of Delaware County which refused William Gaebel and his wife permission to use their land
for Gaebel's business as a heavy equipment contractor and excavator.
Gaebel owns over seven acres of land in Thornbury Township in an area which is zoned partly Commercial and partly Flood Plain. Under the Thornbury Township Zoning Ordinance, neither a Commercial area nor a Flood Plain area has as one of its permitted uses a contracting or excavating business. In 1969, Gaebel began using his land in connection with his business. A cease and desist order was issued to Gaebel by the Township a year later and as a result of this order, Gaebel applied to the Zoning Hearing Board for the grant of a special exception, or in the alternative, a determination that Gaebel's use of his land was a valid nonconforming use. Both requests were denied by the Board and on appeal to the Court of Common Pleas of Delaware County the Board's decision was affirmed. This appeal followed.
Gaebel's first argument is that the use of his property in connection with his business is a permitted use under the Thornbury Township Zoning Ordinance because it is of the "same general character" as other uses permitted by the Ordinance. Gaebel's proposed use of his land is for the storage, maintenance, repair and dispatching of equipment in connection with his business. Thus, this proposed use involves the presence of heavy equipment on the land and the operation of this equipment on the land in connection with the maintenance of such equipment. All this is done unenclosed, in the open, and by Gaebel's own admission, sometimes occurs seven days a week and up to eighteen hours a day.
Since the portion of the tract on which Gaebel seeks to conduct his use is zoned Commercial, an examination of the use regulations in a Commercial District under the Thornbury Township Zoning Ordinance must
be made. Article VII, Section 701 of the Thornbury Township Zoning Ordinance lists the following uses to which a lot ...