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FOSTER GRADING COMPANY v. VENANGO TOWNSHIP ZONING HEARING BOARD (01/23/80)

decided: January 23, 1980.

FOSTER GRADING COMPANY, APPELLANT
v.
VENANGO TOWNSHIP ZONING HEARING BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County in case of Foster Grading Company v. Venango Township Zoning Hearing Board, No. 2136-A-1978.

COUNSEL

James F. Toohey, with him, Gary Skiba, Quinn, Gent, Buseck and Leemhuis, Inc., for appellant.

Jay S. Nedell, with him, W. Gustave McGeorge, Nedell, Underman & McGeorge, for appellee.

Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. Judge DiSalle did not participate in the decision in this case.

Author: Rogers

[ 49 Pa. Commw. Page 2]

This is the appeal of the Foster Grading Company (Foster) from an order of the Court of Common Pleas of Erie County affirming the decision of the Venango Township Zoning Hearing Board denying Foster's application for a conditional use permit.

Foster applied to the Board for a permit to construct and operate a bituminous concrete mixing plant in an A-1 Conservation District of Venango Township. The Township's zoning ordinance permits manufacturing as a conditional use in A-1 Conservation Districts upon compliance with performance standards

[ 49 Pa. Commw. Page 3]

    set out in the ordinance. A conditional use is defined by the ordinance as a special exception. The Board conducted a hearing on Foster's application and denied a permit on the grounds: (1) that there was no evidence that the proposed use met the fire protection performance standards of Section 306.1 of the ordinance; (2) that the proposed use may be dangerous and injurious to property and persons because of the heavy truck traffic associated with it; (3) that the proposed use would be incompatible with adjacent uses; and (4) that the proposed use would be incompatible with the broad objectives of the Township's comprehensive plan. Foster appealed the denial to the Court of Common Pleas, which affirmed, declaring in a memorandum opinion only that it did not appear to the court that the Board had acted in an arbitrary, capricious or unlawful manner in refusing the conditional use. This appeal followed. We reverse.

In the recent case of Bray v. Zoning Hearing Board of Adjustment, 48 Pa. Commonwealth Ct. 573, 410 A.2d 909 (1980), Judge Craig collected and analyzed the cases treating the burdens and duties of, respectively, applicants for and objectors to the grant of special exceptions. The law was there summarized in part pertinent here as follows: the applicant for a special exception has both the duty of presenting evidence and the burden of persuading the competent tribunal that his proposal complies with all objective requirements of the ordinance -- that the use intended is one permitted by the ordinance as a special exception and that all other objective requirements specifically required have been or will be supplied; the objectors to the application have both the duty of presenting evidence and the burden of persuasion, that the use will have a generally detrimental effect on health, safety and welfare or will conflict with expressions of general

[ 49 Pa. Commw. Page 4]

    policy contained in the ordinance. Keeping these distinctions in mind, we will review the reasons cited by the Board for its ...


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