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IRWIN THOMASES v. ZONING HEARING BOARD BOROUGH MONROEVILLE. BOROUGH MONROEVILLE (12/18/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 18, 1975.

IRWIN THOMASES, FRANK BESHARA, R. STEWART SCOTT AND WALTER A. SCOTT, JR., D/B/A CENTER ASSOCIATES AND CATHOLIC INSTITUTE OF PITTSBURGH, PA.
v.
THE ZONING HEARING BOARD OF THE BOROUGH OF MONROEVILLE. BOROUGH OF MONROEVILLE, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Irwin Thomases, Frank Beshara, R. Stewart Scott and Walter A. Scott, Jr., d/b/a Center Associates and Catholic Institute of Pittsburgh, Pa. v. The Zoning Hearing Board of the Borough of Monroeville, Nos. SA 434 of 1974 and SA 650 of 1974.

COUNSEL

John D. Finnegan, with him Martin and Finnegan, for appellant.

David W. Craig, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellees.

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

Author: Mencer

[ 22 Pa. Commw. Page 400]

This zoning case concerns an appeal by the Borough of Monroeville (Borough) from an order of the Court of Common Pleas of Allegheny County. The trial court, after taking additional evidence, granted appellants below, doing business as Center Associates (Center), a conditional use permit for the excavation of their land in order to construct a shopping center. Both the Borough and the Zoning Hearing Board of the Borough of Monroeville (Board) had denied the permit previously. The trial court also removed, as arbitrary and unreasonable, certain conditions from the use permit. The Borough contends that both the grant of the permit and removal of the conditions constitute an abuse of discretion by the court below. We do not agree.

All parties acknowledge that a shopping center is a permitted use in the C-2 zoning district where Center's land is located.*fn1 The crux of this dispute concerns the extensive grading, excavation and landfill operations which will be necessary to accomplish Center's development objectives. The Borough requires that all excavation in excess of 16,000 cubic yards be approved as a conditional use.*fn2

[ 22 Pa. Commw. Page 401]

The section of the ordinance controlling conditional uses (Section 1501) requires, in the case of major excavation, that:

"a. Evidence shall be submitted as to control of the operation in such a manner as to offer reasonable protection to the neighborhood against possible detrimental effects, taking into consideration the physical relationship to surrounding properties, and access to the site, including any nearby residential streets that must be traversed in conveying material to or from the site." (Section 1501.9)

The Borough contends that Center has not met its burden of proof as to the "reasonable protection of the neighborhood against possible detrimental effects."

The court below had the benefit of transcripts of hearings before the Board, arguments of counsel and additional testimony by expert witnesses from both sides. Our scope of review, where the court below has taken additional evidence, is to decide whether the court has abused its discretion or made an error of law. Swift v. Zoning Hearing Board of Abington Township, 16 Pa. Commonwealth Ct. 356, 328 A.2d 901 (1974). A reviewing court will not substitute its findings for those of the lower court where competent credible evidence supports the lower court's decision. McKay v. Board of Adjustment, 8 Pa. Commonwealth Ct. 29, 300 A.2d 810 (1973).

In this case there was conflicting testimony by expert witnesses as to the character of the land and the possibility of landslides and other detrimental effects. The court below chose to accept the testimony of Center's expert, Milan Spanovich, who testified with regard to core borings, soil evaluations and other engineering data. The court concluded, based on that testimony, that:

"There is little evidence of a present threat of landslide or drainage problems resulting from Appellants'

[ 22 Pa. Commw. Page 402]

[here Center's] excavation. In sum, based on geology and topography and the proposed development plans, the area is stable, exceptionally suitable for development and can be developed with little, if any, deleterious threat to the public welfare."

The trial court's finding that Center had met its burden of proof on this point is supported by competent credible evidence; therefore, there is no abuse of discretion.

The Borough also objects to the striking of certain conditions imposed on Center's excavation. The record is somewhat confused on this matter, but it appears that these conditions, numbered 7, 8, 11, 12 and 16,*fn3 were originally part of the Planning Commission's non-binding recommendations to the Borough Council regarding

[ 22 Pa. Commw. Page 403]

Center's site plan. However, these conditions somehow became engrafted onto the conditional use which was for excavation alone. This conditional use was the only matter before the lower court. We agree with the lower court that these conditions concern the construction of the entire project and have no relationship to the excavation per se. Therefore they are arbitrary and unreasonable within the limited context of the so-called conditional use.*fn4

Order affirmed.

Disposition

Affirmed.


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