Appeal from the Order of the Court of Common Pleas of Delaware County in case of Robert E. Cook and Paula F. Cook and Puritan Oil Company, Inc. v. The Zoning Hearing Board of The Township of Ridley, No. 736 of 1979.
Robert N. Speare, with him Peter A. Dunn, and Petrikin, Wellman, Damico & Carney, for appellant.
James R. Flick, with him Anderman, Hughey & Flick, for appellees.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.
[ 47 Pa. Commw. Page 161]
Ridley Township has appealed an order of the Court of Common Pleas of Delaware County, overturning a decision of the Township's Zoning Hearing Board. The Zoning Hearing Board denied the application of Robert E. Cook and Paula F. Cook, equitable owners, and Puritan Oil Company, Inc., record owner, for a variance or, in the alternative, a special exception which would permit the use of their narrow triangular parcel of ground as an open air used car lot. The court below heard no evidence so that it is our duty in this case to determine whether the Zoning Hearing Board committed an error of law or an abuse of discretion. We believe that it did neither and will reinstate its order.
The parcel of land in question is bounded on all three of its sides by public streets. One side is 71 feet in length and the other two each about 260 feet. It is located in the C-2 General Commercial Zoning district in which uses are allowed by the following zoning provisions:
[ 47 Pa. Commw. Page 162]
Any retail business whose principal activity is the sale of new merchandise in an enclosed building including, but not limited to, the following: Automobile sales, boat sales, motorcycle sales. . . .
Uses which in the opinion of the Zoning Hearing Board are of the same general character as those listed as permitted uses and which will not be detrimental to the intended purpose of this district.
The landowners argued successfully below that Section 8.207 permitting uses of the same general character as those listed in Section 8.202 authorize such similar uses as special exceptions. They reason from this conclusion that the only issue was whether the township had shown that an open air used car lot would be contrary to the health, safety and general welfare of the community. Concluding that it would not, the court below held that the special exception should issue. Whether or not the "same general character" uses allowed by Section 8.207 are merely permitted uses or uses allowed by special exception,*fn1 the question of whether an open air used car lot is a use of the same general character as a retail business whose principal activity is the sale of new merchandise in an enclosed building, persists. The question is one of law. We hold that ...