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CHERBEL REALTY CORPORATION v. ZONING HEARING BOARD (01/13/72)

decided: January 13, 1972.

CHERBEL REALTY CORPORATION
v.
ZONING HEARING BOARD



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of In Re: Appeal of Cherbel Realty Corporation from the Decision of the Zoning Hearing Board, Township of Haverford, 1970 Term, No. 9520.

COUNSEL

John W. Nilon, Jr., with him Robert E. J. Curran and Kassab, Cherry, Curran & Archbold, for appellant.

A. Leo Sereni, for appellee.

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

Author: Rogers

[ 4 Pa. Commw. Page 138]

This is an appeal by a landowner from an order of the Court of Common Pleas of Delaware County sustaining a Zoning Hearing Board's denial of the appellant's application for a special exception.

Appellant Cherbel Realty Corporation applied to the Zoning Hearing Board of Haverford Township for a special exception to establish a car wash cum motor vehicle filling station. The Board denied the application and the court below, without hearing additional evidence, dismissed the appeal.

The court below concluded that the Board had committed an error of law in placing upon the applicant the burden of showing that the proposed use would be consistent with the health, safety and welfare of the community. If the township zoning ordinance did, in

[ 4 Pa. Commw. Page 139]

    fact, place on the applicant for a special exception the burden of showing no adverse effect on health, safety and general welfare, we would be faced with a troublesome question. Compare Berlant et al. v. Lower Merion Township Zoning Hearing Board, 2 Pa. Commonwealth Ct. 583, 279 A.2d 400 (1971) and Derr Flooring Company, Inc. v. Whitemarsh Township Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 341, 285 A.2d 538 (1971). However, Paragraph 18 of Haverford Township Zoning Ordinance No. 1326 of December 11, 1967, reads as follows: "On a petition for a Special Exception, the burden of proof shall be upon the applicant to show that the granting of such Special Exception is in harmony with the general purposes and intent of the Haverford Township Zoning Ordinance of 1925." This language is so vague that the lower court was correct in concluding that the applicant's only burden was to prove that its request for special exception conformed to the requirements of the ordinance and that the opposition to the exception must carry the burden of proving that the proposed use would be contrary to the public interest. The court below concluded that this burden had been met and affirmed the Board's denial of the exception.

Appellant proposes to construct an automatic car wash with gasoline pumps on West Eagle Road in the H-Business Zoning District of Haverford Township. A car wash is concededly of the same general character as a motor vehicle service station and repair shop, a use permitted in the H-Business District. Novello v. Zoning Board of Adjustment, 384 Pa. 294, 121 A.2d 91 (1956). West Eagle Road is a heavily traveled two-lane state highway, 30 feet in width, and at the location of the proposed car wash and filling station is used by an average of 12,500 cars daily. It is one of only three roads in the township which provide a crossing

[ 4 Pa. Commw. Page 140]

    of tracks of the Philadelphia and Western Railroad. The Cherbel site has frontage only on Eagle Road, and the only means of ingress and egress to its proposed facility would be from Eagle Road. Immediately to the west of the Cherbel site is an Esso gasoline service station; adjoining the Esso service station is a large lumber yard; adjacent to the lumber yard is a Shell gasoline service station; at Belvedere and Eagle Roads, across from the Cherbel site is a "7-11" store; and diagonally across from the Cherbel site and adjacent to the railroad tracks is the plant of the Philadelphia Chewing Gum Company. Into this area appellants wish to introduce a car wash which, according to plans submitted at the hearings ...


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