Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Application of Exton Materials, Inc., for Special Exception and Variance, No. 126 November Term, 1971.
William H. Lamb, with him Lamb, Windle & McErlane, for appellant.
Thomas A. Riley, Jr., with him John C. Snyder, and Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers did not participate. Opinion by Judge Kramer.
[ 11 Pa. Commw. Page 475]
This is an appeal filed by West Whiteland Township (Township) from an order of the Court of Common Pleas of Chester County (filed in the Office of the Prothonotary of that county on December 18, 1972) in which the "decision" of the West Whiteland Township Zoning Hearing Board (Board) was reversed. In effect, the lower court's order reversed the Board's decision not to issue to Exton Materials, Inc. (Exton) a building permit for the erection and operation of a bituminous concrete plant.
The pertinent facts are that Exton, as the equitable owner under an agreement of sale, filed an application for a building permit for the erection and operation of a bituminous concrete plant on its plot of ground consisting of approximately 20.8 acres. The ground is unused and contains an abandoned stone quarry which has been abandoned for more than 50 years. The land in question is located in what is known as an "I-1 Industrial District" under the Township's Zoning Ordinance. Pertinent provisions of the Ordinance are found in Section 41.01, which read as follows:
"Uses. In any I-1 district, land buildings or premises shall be used for only one or more of the following uses or any other use of the same general character which does not constitute a nuisance or is not offensive by reason of the emission of objectionable odor, noise, heat, smoke, dust, fumes, gas, vibration or waterborne waste, when permitted by the Board of Adjustment as a special exception: . . .
"2. Assembly from components including the assembly of radios, television and similar electronic products.
[ 11 Pa. Commw. Page 476]
"3. Finishing processes requiring heat." (Emphasis added.)
The following sections of the Ordinance contain the usual provisions establishing standards and conditions upon which special exceptions may be granted. Exton made application for a building permit and the Township's zoning officer denied same, whereupon Exton filed an appeal with the Board wherein it alleged that the intended use came within the provisions of the quoted provisions of Section 41.01 of the Zoning Ordinance. In the alternative, Exton requested a variance and alleged that if its intended use was not permitted under the Ordinance, such denial would be unconstitutional.
The Board held extensive hearings on the matter and concluded that the intended use did not come within the provisions of the Zoning Ordinance for a special exception. Having determined that the intended use would be adverse to the public health, safety and welfare of the community, the Board "denied" Exton's "request" for the building permit. Exton then appealed to the lower court, which entered its opinion without receiving additional testimony or evidence. The lower court also concluded that Exton did not come within the provisions for a special exception under the quoted provisions of Section 41.01. The lower court then held that since the Zoning Ordinance did not make any provisions for a bituminous concrete plant, such usage was thereby prohibited in violation of the Supreme Court's decision in Girsh Appeal, 437 Pa. 237, 262 A.2d 395 (1970). In reaching this conclusion, the lower court referred to Beaver Gasoline Co. v. ...