Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Rocks Associates, Inc. v. Township of Abington, No. 72-07293.
Daniel B. Michie, Jr., with him Fell, Spalding, Goff & Rubin, for appellant.
Donald A. Gallager, with him Waters, Fleer, Cooper & Gallager, for appellee.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
The appellee in this zoning case, Rocks Associates, Inc., the equitable owner of a lot of land located on Easton Road, Abington Township, Montgomery County, applied to the Township Zoning Hearing Board for a special exception to make alterations to a building thereon and thereafter to use the property as a car wash and gasoline sales station. The Board denied the exception but the Court of Common Pleas reversed. This appeal by the township followed.
The record owner of the lot in question had used it for many years as a gasoline sales and service station but his most recent use was as a commercial garage only. These uses of the property were nonconforming in the F-1 commercial zoning district of the township in which the lot was located. The Abington Township zoning ordinance provides, however, for a change of an existing nonconforming use to another nonconforming use of the same or more restricted classification as of right, unless structural alterations are proposed, in which case the change of use requires the grant of a special exception. A change from garage to car wash
use are within the same classification under the ordinance but as substantial alterations of the garage building, extensive paving of the lot and the construction of gasoline pumps were required to fit the premises to the new use, the appellee needed a special exception.
The appellee's case was presented to the Zoning Hearing Board in a somewhat routine fashion. A representative of Rocks Associates described the contemplated use and its professional engineer presented his plans for the new installation establishing that the contemplated car wash complied with all of the technical standards of the zoning ordinance for this type of operation. The appellee adduced no evidence in chief concerning traffic congestion and made no effort to rebut substantial testimony of neighborhood witnesses that (1) Easton Road is a heavily traveled highway subject to traffic congestion, (2) that the premises is located on a curve of Easton Road and at an intersection of a street from which it is difficult to enter Easton Road, and (3) that there is nearby a grade crossing of the Reading Railroad where trains cross Easton Road each 45 minutes causing traffic to back up in Easton Road. Indeed, the court below noted that "Easton Road has a sharp curve near the property and is a heavily traveled artery. The railroad crossing has been present many years and causes traffic to back up when the gates are down."
The court below took no evidence. Our function, therefore, is that of determining whether the Zoning Hearing Board, invested by the enabling legislation and the township ordinance with making the determination in this matter, abused its discretion or committed an error of law. Clawson et al. v. Harborcreek Zoning Hearing Board, 9 Pa. Commonwealth Ct. 124, 304 A.2d 184 (1973).
The appellee under the law was required to show, as it did, that its proposed ...