Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: The Appeal of B.P. Oil Corporation From The Lower Southhampton Township Zoning Hearing Board, No. 1071 December Term, 1970.
Marcel L. Groen, with him Simons, Kashkashian, Kellis & Groen, for appellant.
George T. Kelton, with him William J. Carlin and Begley, Carlin, Mandio, Kelton & Popkin, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge Rogers.
[ 16 Pa. Commw. Page 109]
This is an appeal from an Order of the Court of Common Pleas of Bucks County which reversed a denial by the Lower Southampton Township Zoning Hearing Board (hereinafter the Board) of an application for a
[ 16 Pa. Commw. Page 110]
special exception by BP Oil Corporation (hereinafter BP) to construct and operate a gasoline service station in a CC-Controlled Commercial district.
On June 23, 1970, BP became the equitable owner of the subject property, located at the intersection of Street Road and Central Avenue in Lower Southampton Township, which was zoned CC-Controlled Commercial under Section 600-B of the Township's zoning ordinance.
BP applied for a building permit on July 17, 1970, and a use permit on August 25, 1970, both of which were denied by the Zoning Officer because a special exception was required by Section 600-B for a gasoline service station use within the district. BP appealed these denials by a timely request for a special exception from the Board. Thereafter the Township Solicitor distributed to the Board of Supervisors a draft of a proposed ordinance (later to become Ordinance 191) designed to eliminate completely gasoline service station uses within CC-Controlled Commercial districts.
On October 8, 1970, a public hearing was held by the Board on the application for a special exception. At the beginning, BP, by agreement of counsel for the parties, was permitted to request a variance from rear and side yard setback requirements in the zoning ordinance.
A hearing to be held on the proposed ordinance above-mentioned was then publicly advertised on October 15, 1970, by the Board of Supervisors which subsequently adopted Ordinance 191 on November 5, 1970.
The Board denied the applications for a special exception and for a variance on November 16, 1970, reasoning (as to the variance) that the lot could be used as zoned, without the need for a variance to accommodate five-foot discrepancies in the rear and side yards, and that a proposed canopy had "the effect of cutting off the open space and, in essence, extending the building
[ 16 Pa. Commw. Page 111]
line to within nine feet from the right-of-way line." As to the request for a special exception, the Board concluded that the proposed use was not "an appropriate use of this land" because of "the adequacy and number of the similar uses in proximity to the proposed use" and because the use would detract from the use of the neighboring residential property.
BP appealed these decisions to the Court of Common Pleas of Bucks County on December 15, 1970. The Township Solicitor subsequently filed a Declaration of Position with the Court which raised no question as to the applicability of Ordinance 191 to the proceedings.
During the pendency of this appeal, BP filed another application seeking only a special exception and included therewith plans revised to eliminate the necessity for set-back variances: (1) the building was relocated upon the property so as to change the rear yard depth from 15 to 20 feet; (2) the offending 20 x 49 foot canopy was eliminated; and (3) one of the two pump islands beneath the canopy was eliminated and the other pump island beneath the canopy was moved from 15 to 20 feet clear of the right-of-way line.
At the hearing on this application held March 11, 1971, the Board, upon the recommendation of the Township Solicitor, refused to hear the case upon its merits because to do so would be the taking of additional evidence on the first application, which it could not do because of the pending appeal unless the court remanded for additional evidence. Then, contradicting itself, the Board also indicated that this application was an entirely new one because of the changes made in the plans and that therefore it was powerless to grant the special exception at that time because of the passage of ...