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MILLER & SON PAVING v. WRIGHTSTOWN TOWNSHIP (08/10/79)

decided: August 10, 1979.

MILLER & SON PAVING, INC., APPELLANT
v.
WRIGHTSTOWN TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Miller & Son Paving, Inc. v. Wrightstown Township, No. 77-6551-09-5.

COUNSEL

Stephen B. Harris, with him Harris & Harris, for appellant.

Terry W. Clemons, Solicitor, for appellee.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 45 Pa. Commw. Page 34]

Miller and Son Paving, Inc. (Miller), appeals a decision of the Court of Common Pleas of Bucks County

[ 45 Pa. Commw. Page 35]

    which affirmed the action of the Wrightstown Zoning Hearing Board (Board) in upholding the constitutionality of sections of the Wrightstown Township Zoning Ordinance. Miller challenges the ordinance on three grounds: (1) it has been preempted by other state law; (2) it unconstitutionally prohibits expansion of nonconforming uses; and (3) the setback requirements contained therein are arbitrary, capricious and unreasonably confiscatory. We reject each of these contentions and affirm on the basis of Judge Rufe's able opinion which is located at 32 Bucks Co. 239 (1978). Miller has also raised an additional issue on appeal (relating to the admissability of certain evidence before the Board) which, research reveals, was not raised before, or considered by, the lower court. The consideration of an issue by a lower court being an essential prerequisite to review of the matter on appeal, this question will not be considered by our Court. Richland Township v. Hellerman, 30 Pa. Commonwealth Ct. 438, 373 A.2d 1367 (1977).

Order

And Now, this 10th day of August, 1979, the order of the Court of Common Pleas of Bucks County dated August 3, 1978, and found at 32 Bucks Co. 239 (1978), is hereby affirmed.

Disposition

Affirmed.

19790810 ...


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