Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Hardee's Food Systems, Inc. v. Susquehanna Township Board of Commissioners, No. 1259 S 1979.
Robert L. Knupp, Knupp and Andrews, P.C., for appellant.
Ronald M. Katzman, Goldberg, Evans and Katzman, for appellee.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.
[ 59 Pa. Commw. Page 481]
The Susquehanna Township Board of Commissioners (Board), the appellant here, seeks review of a decision of the Court of Common Pleas of Dauphin County which reversed the Board's refusal of the appellee's*fn1 request for a conditional use permit to add a drive-through window at its restaurant in Susquehanna Township (Township).
The appellee applied to the Board for a permit to install a drive-through window as a conditional use under Chapter XXVII, Section 192(h)(5) of the Township's Code of Ordinances (Township Code) and that application was approved by the Township's Planning Commission. The Board then held a public hearing, took evidence and denied the request. On appeal, the lower court remanded the matter to the Board for a written adjudication, and a second evidentiary hearing was then conducted, after which the Board issued an opinion and findings of fact reaffirming its previous denial of the conditional use permit. An appeal was again taken to the common pleas court which reversed the Board's determination. This appeal followed.
Section 603 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10603, provides that zoning ordinances may include "[p]rovisions for conditional uses to be allowed or denied by the governing body after recommendations by the planning agency, pursuant to express standards and criteria set forth in the ordinances. . . ." The Township's zoning ordinance establishes such criteria*fn2 and the Board found that the appellee's addition of a drive-through window would
[ 59 Pa. Commw. Page 482]
violate those standards relating to air pollution and traffic in the area.*fn3 The lower court held, however,
[ 59 Pa. Commw. Page 483]
that the appellee had met its burden of proving conformity with the requirements for a conditional use under the Township's zoning ordinance and that, inasmuch as the objectors to the permit did not produce evidence that the drive-through window would pose a hazard to the health, safety and general welfare of the area, approval should have been granted.
The Board argues that the court failed to defer to the Board's role as factfinder and to its assessment of the credibility of the witnesses and that it also improperly shifted the burden of proof to the Township to show that the conditional use concerned here ...