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APPEAL MOBIL OIL COMPANY AND HIBBARD BARTRAM. TOWNSHIP WESTTOWN (10/02/75)

decided: October 2, 1975.

APPEAL OF MOBIL OIL COMPANY AND HIBBARD BARTRAM. THE TOWNSHIP OF WESTTOWN, APPELLANT


Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Appeal of Mobile Oil Company and Hibbard Bartram, No. 83 September Term, 1972.

COUNSEL

John S. Halsted, with him Gawthrop & Greenwood, for appellant.

Thomas A. Riley, Jr., with him John C. Snyder and Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for appellees.

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

Author: Blatt

[ 21 Pa. Commw. Page 296]

This is an appeal taken by the Township of Westtown (Township) from an order of the Court of Common Pleas of Chester County directing it to issue a building permit to Mobil Oil Company (Mobil), the lessee of a 1.345 acre parcel situated at the northeast corner of U.S. Route 202 and Pa. Route 926. This parcel is part of a larger four-acre lot owned by Hibbard Bartram.

Mobil seeks to construct a gasoline service station on the site and pursuant to that desire it joined Bartram in applying for zoning approval from the Township Zoning Officer. Upon denial, an appeal was taken to the Township's Zoning Hearing Board (Board) where the applicants pursued requests for a special exception and variance and also attacked the constitutionality of certain

[ 21 Pa. Commw. Page 297]

    provisions of the Township's Zoning Ordinance. After holding three extensive hearings in May, June and July of 1972, the Board issued a lengthy opinion on August 23, 1972 in which it affirmed the denial of the building permit and denied the application for variance and special exception. In its opinion, the Board also discussed and rejected the applicants' constitutional arguments.

An appeal was thereupon taken to the Court of Common Pleas where the applicants renewed their constitutional challenge, asserting in particular the invalidity of two separate provisions of the ordinance. After ordering a remand, at which some additional testimony was taken on May 10, 1973, the lower court issued an opinion on July 13, 1974 in which it held both challenged provisions to be unconstitutional and consequently ordered the issuance of a building permit.

The parcel which Mobil seeks to use for its gasoline service station is located in a Commercial District in which gasoline service stations are permitted as a special exception under the condition "that no service station shall be located within 500 feet of another service station on the same side of the highway. . . ." There is considerable ambiguity as to the method by which the 500-foot distance ought to be measured but it is clear that under any reasonable interpretation of that provision Mobil fails to comply. The distance between the northern lot line of Mobil's parcel and the southern lot line of a Sunoco service station to the north on the same side of Route 202 is 200 feet. The distance between driveways is 200 feet; the distance between pumps is 386 feet; and the distance between buildings is 425 feet.

The ordinance also contains a section entitled "Area & Bulk Regulations." That section provides for a number of regulations applicable in a Commercial District and among them is ...


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