Appeal from the Order of the Court of Common Pleas of Berks County in case of In Re: Appeal from the Decision of Zoning Hearing Board of Douglass Township, Berks County, Pennsylvania, of Ironstone Corporation, No. 404 August Term, 1970.
Lawrence Sager, with him Louis Sager and Sager & Sager, for appellant.
J. Kitridge Fegley, with him David M. Kozloff and Rhoda, Stoudt & Bradley, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
This is a zoning appeal. The Berks County Court of Common Pleas affirmed a decision of the Douglass Township Zoning Hearing Board (Board). Appellant, Ironstone Corporation, pursuant to a variance which allowed it to use the property in question as a ski area and recreational resort, conducted snowmobile races without the blessing of zoning permits as required by the Township's ordinance. The Township cited Ironstone for this violation.
Thereafter, Ironstone applied for a zoning permit to use the property for various recreational activities. On April 3, 1970, it went to the Board and asked for an interpretation of the Township ordinance by which the variance would allow certain recreational activities, including day camping and training grounds, snowmobile competition and outdoor concerts. Alternatively, Ironstone requested a special exception if the Board concluded a permit was required.
The Board granted a special exception for recreational use including day camping and related activities, training grounds and competition in athletic sports, but it specifically excluded outdoor concerts and competition involving self-propelled conveyances, e.g., snowmobiles.
The Berks County Court of Common Pleas on appeal remanded the matter for further findings. After a hearing, the Board, by order dated April 29, 1971, held that the operation of snowmobiles on the property of appellant constituted a racetrack within the meaning of a prohibition in the Township ordinance.*fn1 Ironstone then appealed to the Court of Common Pleas of Berks County which, without taking further testimony, affirmed the Board. Hence the appeal to this Court.
Appellant proffers two arguments: (1) That it was denied an impartial hearing before the Board since in the violation proceeding and at the hearing before the Board, the same person acted as solicitor for both authorities; and (2) That it was an error of law for the Board to refuse Ironstone a special exception.
A careful review of all of the proceedings fails to uphold appellant's position that a fair and impartial hearing was not had. The initial action taken against Ironstone was concerned with the violation of the zoning ordinance in that it had not obtained nor attempted to obtain a permit to conduct the snowmobile races in the winter of 1970-71. The first action has no relation to the contention that a special exception should be awarded to allow the races. The solicitor acted for the Township in its action to move appellant to obtain some type of a permit to conduct the activities in question but in so doing it cannot be said that his subsequent participation in an action to determine whether these activities are covered by a special exception creates prejudicial duality. Herein lies the distinction between the factual posture we condemned in Donnon v. Downingtown Civil Service Commission, 3 Pa. Commonwealth Ct. 366, 283 A.2d 92 (1971).
There is no indication in the record nor any factual averment to support the contention that the solicitor was predisposed in the matter of the special exception or in any way attempted to improperly influence the conduct of or the result of the proceedings before the Board. This Court in Cherbel Realty Corp. v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 137, 144, 285 A.2d 905 (1972), stated: "Although this court in Limekiln Golf Course, Inc. v. Zoning Board of Adjustment of Horsham Township, 1 Pa. ...