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APPEAL GREEN & WHITE COPTER (07/12/76)

decided: July 12, 1976.

IN RE: APPEAL OF GREEN & WHITE COPTER, INC. FROM THE DENIAL OF ITS CURATIVE AMENDMENT REQUEST BY THE BOARD OF COMMISSIONERS OF RADNOR TOWNSHIP. GREEN & WHITE COPTER, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of Green & White Copter, Inc., from the Denial of its Curative Amendment Request by the Board of Commissioners of Radnor Township, No. 5553 of 1974.

COUNSEL

Richard P. McBride, with him Power, Bowen & Valimont, for appellant.

Eugene H. Evans, Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case. Judge Rogers concurs in the result only.

Author: Bowman

[ 25 Pa. Commw. Page 446]

This appeal poses the question of whether every use of land is constitutionally protected, and necessarily must be provided for in a zoning ordinance. We hold that the perimeter of constitutionally protected property rights is not so expansive, and affirm the

[ 25 Pa. Commw. Page 447]

    lower court. In so holding, the narrow question of burden of proof presents itself.

On November 20, 1973, Green & White Copter, Inc. (appellant) filed an application for a curative amendment with the Radnor Township Board of Commissioners (Board) pursuant to Section 1004(1)(b) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(1)(b). The application sought an amendment to the Radnor Township zoning ordinance to provide for private use heliports in R-2 residential districts. The proposed use was to be maintained strictly as a personal use, not for commercial or business uses. The Radnor Township zoning ordinance at the time of the application made no provision for heliports of any variety -- commercial or private -- anywhere within the municipal boundaries.

Appellant leased 1.607 acres of land in an R-2 residential district which it utilized as a heliport. Incident to this use, appellant had obtained a heliport license for the site in question from the Pennsylvania Department of Transportation, Bureau of Aviation, as provided in The Aeronautical Code, Act of May 25, 1933, P.L. 1001, as amended, 2 P.S. § 1460 et seq.

After a hearing, the Board, on April 22, 1974, rejected appellant's proposed amendment, from which action an appeal was taken to the Court of Common Pleas of Delaware County. In a well-reasoned opinion by Judge Toal, the lower court affirmed. Hence this appeal.

Appellant insists that the existing zoning ordinance is exclusionary, and, therefore, unconstitutional in failing to provide for personal use heliports. Appellant relies on our Supreme Court's decisions in Beaver Gasoline Company v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971) ...


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