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APPEAL GEORGE BENECH AND ANNA BENECH FROM DECISION FAWN TOWNSHIP ZONING HEARING BOARD. RONALD R. PORTER (02/01/77)

decided: February 1, 1977.

IN RE: APPEAL OF GEORGE BENECH AND ANNA BENECH FROM DECISION OF FAWN TOWNSHIP ZONING HEARING BOARD. RONALD R. PORTER, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of George and Anna Benech from Decision of Fawn Township Zoning Hearing Board, No. SA 424 of 1974.

COUNSEL

David W. Craig, with him Frank P. Paz, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig for appellant.

Joseph A. Fricker, Jr., with him Fricker, Zimmer & Dice, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 28 Pa. Commw. Page 416]

Fawn Township, Allegheny County, is a sparsely populated township graced with breathtaking rural amenities. It is also graced with a motorcycle racecourse operated on an 80-acre tract which was recently rezoned at the request of its owner, Ronald R. Porter, so as to allow the course to operate legally. The suit of Porter's aggrieved neighbors, attacking the validity of the rezoning and thereby seeking to close the racecourse, was successful in the Allegheny County Court of Common Pleas, and Porter's appeal is now before us.

Porter owns over 100 acres of land in an isolated, rural section of Fawn Township, which had been zoned R-2 Rural Residential. In addition to a conforming mine-refuse landfill, the tract was being used primarily for a cross-country motorcycle racecourse,

[ 28 Pa. Commw. Page 417]

    which is not a legal use under the R-2 classification.*fn1 Porter applied for an amendment to the zoning map of the township so that 80 acres of his land would be rezoned either Industrial or Commercial, whichever would be applicable to accommodate the operation of a racetrack. The matter was referred to the township planning commission which, after a hearing at which the sole consideration was the racecourse use, recommended adoption of a rezoning ordinance. The township's board of supervisors thereafter enacted an ordinance rezoning Porter's land C-2 Neighborhood and Highway Commercial.*fn2 Interestingly, the ordinance did not affect a tract of land owned by one Hunter which is completely surrounded by the rezoned Porter property and which remains R-2. In effect, then, the ordinance created a doughnut-shaped commercial zone in an isolated rural area.

Several of Porter's neighbors objected to the rezoning and appealed the enactment of the ordinance to

[ 28 Pa. Commw. Page 418]

    the Fawn Township Zoning Hearing Board (ZHB), alleging that the ordinance constituted discriminatory zoning, that it constituted an unreasonable and arbitrary exercise of police power, and that it did not conform to the township's comprehensive plan. When the ZHB upheld the ordinance, the neighbors appealed to the Court of Common Pleas of Allegheny County.

The common pleas court heard the appeal de novo. After taking testimony and viewing the tract in question, as well as reviewing the record from below, it invalidated the ordinance because it was unjustifiably and arbitrarily ...


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