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JOHN G. BRUNNER v. ZONING HEARING BOARD UPPER MAKEFIELD TOWNSHIP (02/07/74)

decided: February 7, 1974.

JOHN G. BRUNNER, MARY E. BRUNNER, HIS WIFE, AND SIDNEY T. YATES, APPELLANTS,
v.
THE ZONING HEARING BOARD OF UPPER MAKEFIELD TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of John G. Brunner and Mary E. Brunner, his wife and Sidney T. Yates v. The Zoning Hearing Board of Upper Makefield Township, No. 72-1541-08-1.

COUNSEL

John Philip Diefenderfer, with him Stuckert, Yates & Krewson, for appellants.

John D. Trainer, with him Power, Bowen and Valimont, for appellee.

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

Author: Crumlish

[ 12 Pa. Commw. Page 111]

Appellee Monk stirred up the individual Appellants when he induced the Zoning Board of Upper Makefield Township (Board) to grant him a special exception to operate a private heliport on 5.7 acres of vacant ground which had been specifically leased for that purpose.

Appellee's first application for a special exception under Section 613 of the Upper Makefield Zoning Ordinance to locate a heliport on his own land in August of 1971 was rejected by the Board because his property consisted of 3.5 acres, and could not meet the State minimal requirement of 500 foot helicopter approaches without encroaching upon the airspace of adjacent properties. Monk then leased, subject to zoning approval, a 200 by 200 feet landing area directly across the road from his property, and in addition, the right to fly over the remainder of the lessor's 60 acre farm. In considering Appellee's reapplication for a special exception, the Board conducted two hearings in November and December of 1971 which resulted in extensive testimony relative to the noise level of the proposed heliport and its effect upon the property values in the Residential-Agriculture district in which this property is located. In its decision dated January 29, 1972, the Board granted the special exception, concluding that the heliport would be compatible with adjacent residential uses upon the condition that (1) the heliport be limited to one privately owned helicopter of less than 200 horsepower, and (2) that its landing pad be set back at least 500 feet from the nearest public road or property line. The Board and Monk's position was sustained by the Court of Common Pleas of Bucks County. Appellants now come to us for relief.

[ 12 Pa. Commw. Page 112]

Where the court below has taken no additional evidence, our scope of review in a zoning case is limited to a determination of whether or not the zoning hearing board committed an abuse of discretion or an error of law. Clawson v. Harborcreek Zoning Hearing Board, 9 Pa. Commonwealth Ct. 124, 304 A.2d 184 (1973); The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A.2d 234 (1973). Our review of the record, which we find supports the findings of fact of the Board, reveals neither an error of law nor an abuse of discretion, and so we affirm.

Appellant's initial contention is that the Board and Court of Common Pleas committed an error of law in its construction of Section 613 of the Ordinance as authorizing an airfield use by special exception. A close reading of Section 613 convinces us that this argument is without merit. It provides:

" Airfields

"1. No airplane landing field of any class shall be constructed, laid out, or maintained in the said Township, except by express authority of and after hearing had by the Zoning Hearing Board, said Zoning Hearing Board first giving notice to adjoining property owners, which must be by public notice published once a week for three weeks in a newspaper circulating generally in said Township."

It is evident that Section 613 functionally, if not expressly, creates an "airfield" use as a special exception throughout Upper Makefield Township. "A special exception is not an 'exception' to a zoning ordinance. It is a permitted use which an applicant is entitled to have, unless the Board determines, according to the standards in the zoning ordinance, that the use would adversely affect the community." Berlant ...


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