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FOOD BAG v. MAHONING TOWNSHIP ZONING BOARD ADJUSTMENT (05/12/80)

decided: May 12, 1980.

FOOD BAG, INC., APPELLANT
v.
MAHONING TOWNSHIP ZONING BOARD OF ADJUSTMENT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montour County in case of Food Bag, Inc. v. Mahoning Township Zoning Board of Adjustment, No. 397-1978.

COUNSEL

Clinton W. Smith, Stuart, Murphy, Smith, Mussina, Harris & Rieders, for appellant.

Arthur M. Peters, Jr., for appellee.

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

Author: Macphail

[ 51 Pa. Commw. Page 305]

Food Bag, Inc. (Appellant) has appealed from an order of the Court of Common Pleas of Montour County which affirmed the Township Board of Adjustment's (Board) denial of a permit to install self-service gasoline pumps on property located in Mahoning Township (Township).

Appellant operates a grocery store which it calls a "convenient market" on its property and now seeks to set up a self-service gasoline island, with three pumps, in the parking area in front of the store. The property is located in an area zoned C-A Commercial Apartment. Grocery stores are a permitted use within the zone but gasoline service stations are not. Gasoline service stations are permitted in several other zoned districts in the Township.

Appellant argued before the Board that the gasoline pumps should be permitted either as a use of the same general character as a retail food store or as an accessory use. The Board rejected both theories.

Since the lower court affirmed the Board's action without taking additional evidence, our review is limited to a determination of whether the Board has abused its discretion or committed errors of law. Harper v. Ridley Township Zoning Hearing Board, 21 Pa. Commonwealth Ct. 93, 343 A.2d 381 (1975).

[ 51 Pa. Commw. Page 306]

    the instant case are distinguishable from their traditional role and are now an incidental part of a new industry, to wit the "convenient market."

It is clear that uses may be principal or accessory depending upon the facts of each situation. For example, a restaurant may be the principal and only use or may be accessory to a principal use such as a bowling alley. Gross v. Zoning Board of Adjustment, 424 Pa. 603, 227 A.2d 824 (1967). There would seem, therefore, to be no logical impediment to gasoline pumps as accessory to a principal use such as a convenient market, merely by virtue of the fact that gasoline pumps are also an essential part of a service station.

The Board argues, however, that the instant case is controlled by our decision in V.S.H. Realty, Inc. v. Zoning Hearing Board of Sharon Hill, 27 Pa. ...


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