Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Neville Land Company v. Township of Neville, No. S.A. 317 of 1973.
Frederick A. Boehm, with him Bresci R. P. Leonard, Goehring, Rutter & Boehm and Robb, Leonard & Edgecomb, for appellant.
Frank J. Gaffney, with him John H. Morgan, Edward G. O'Connor, Thorp, Reed & Armstrong and Eckert, Seamans, Cherin & Mellott, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
[ 14 Pa. Commw. Page 227]
This appeal is from an order of the Court of Common Pleas of Allegheny County granting Neville Land Company (Neville Land) and its successor in interest, Exxon Corporation (Exxon), a variance to construct and operate a petroleum products tank farm on a 51.4 acre tract of land zoned Commercial "C" in the Township of Neville (Township).
In September of 1972, Neville Land and Exxon entered into a land purchase option for the land in question, which Exxon eventually exercised at a purchase price of $960,520.00. The agreement is contingent upon a rezoning of the property to allow a petroleum tank farm use which is specifically prohibited in a "C" Commercial District of the Township by Article III, Section 7(27) and (42) of the applicable zoning ordinance.*fn1 The 51.4 acre tract is unimproved vacant land situated at the western end of the Township, which is an island of 938 acres surrounded by the Ohio River. The Township is approximately 10 miles from downtown Pittsburgh, with access by way of Route 51, two bridges at the eastern and western ends of the island, and by an interchange of I-79 presently under construction.
The present zoning ordinance was adopted in 1956. It divides the Township into four use districts -- Residential "A" (single family dwellings); Residential "B" (multi-family dwellings and other related uses);
[ 14 Pa. Commw. Page 228]
Commercial "C" (permitting all uses except 55 manufacturing uses specifically prohibited), and Industrial District "D" (generally allowing all industrial manufacturing uses including those prohibited by Commercial District "C").*fn2 The industrial zone covers only 75% of the Township and stretches from the eastern tip of the island two-thirds of its length. The residential zones (comprising approximately 70 acres) are sandwiched between the Industrial District and I-79 to the east and the Commercial District to the West.
Neville Land's property consists of 51.4 of the 70 acres zoned commercial. Of this acreage, Neville Land can presently develop 25.96 acres, as the remainder is in the channel of the Ohio River which overflows the triangular site on two sides. The purchase price agreed upon by Neville Land and Exxon is based upon this usage acreage, with a per acre price of $37,000.00. Exxon's development plan calls for the installation of a total of 11 gasoline and diesel storage tanks in two stages. As planned, the nearest tank would be approximately 750 feet from existing residential properties. The petroleum products are to be brought in by pipeline and distributed by tank truck.
On February 7, 1973, Neville Land submitted a request to the board of commissioners of the Township pursuant to Section 609.1 and 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC)*fn3 that its land be rezoned to Industrial District "D" to permit its development as a tank farm. The commissioners, sitting as a planning committee, conducted a public hearing on the curative amendment in March
[ 14 Pa. Commw. Page 2291973]
. On April 12, 1973, the planning committee recommended that the area not be rezoned. A further hearing was held by the commissioners, sitting as a "governing body" as contemplated by Sections 609.1 and 1004 of the MPC, ...