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decided: June 4, 1981.


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.

Author: 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. ยง 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 threatened the health, safety and general welfare of the community.

Our scope of review, where as here the lower court did not take additional evidence, is limited to determining whether or not the Board abused its discretion or committed an error of law and whether or not the findings of fact are supported by substantial competent evidence. Soble Construction Co. v. Zoning Hearing Board of the Borough of East Stroudsburg, 16 Pa. Commonwealth Ct. 599, 329 A.2d 912 (1974).

A conditional use is a use which the governing authority has determined is not adverse in and of itself to the public interest, Zoning Hearing Board v. Konyk, 5 Pa. Commonwealth Ct. 466, 290 A.2d 715 (1972), but which may be subject to whatever reasonable standards such a legislative body deems to be appropriate. Once the applicant has demonstrated compliance with those standards, however, the permit must be granted, Greensburg City Planning Commission v. Threshold, Inc., 12 Pa. Commonwealth Ct. 104, 315 A.2d 311 (1974), unless the objectors come forward with evidence that the conditional use would pose a substantial threat to the community, Foster Grading Co. v. Venango Township Zoning Hearing Board, 49 Pa. Commonwealth Ct. 1, 412 A.2d 647 (1980).

[ 59 Pa. Commw. Page 484]

We must first determine, therefore, whether or not the Board abused its discretion by finding that the appellee did not meet its initial burden of proof.

The appellee introduced specific testimony at the Board hearings as to each of the criteria delineated in the zoning ordinance, supra n. 2, but the Board concluded that the testimony did not establish that the "drive-thru window should be compatible to the surrounding land uses and existing environmental conditions." The Board found that the proposed use was consistent with the Township's zoning and comprehensive plan for the area and that no problems would arise in relation to sewage or storm water facilities, increased illumination or excessive noise. The only finding of the Board, which could possibly show an adverse influence on environmental conditions, is that the drive-through window "could" contribute to air pollution in the area. On the other hand, the appellee presented testimony that air pollution would not be a problem, and we believe that the speculative nature of the Board's finding makes it insufficient to support the holding that the appellee did not meet its burden of proof.

We also believe that the appellee met its burden of showing that traffic patterns in the area would not be adversely affected. The Board found that the drive-through window would attract only 11 additional cars per day, and the record discloses that the appellee's parking lot would be designed in such a way as to accommodate a line of 12 to 14 cars without adversely affecting the flow of traffic.

As to whether or not the objectors presented sufficient evidence to support the Board's ruling that the installation of the drive-through window would so aggravate an existing traffic problem as to pose a safety threat and to be detrimental to the public welfare, testimony was presented that the restaurant

[ 59 Pa. Commw. Page 485]

    is located along Route 22 in Susquehanna Township which is used by up to 38,000 cars daily and that, at that intersection, 40 accidents had occurred in 1978. The Board found that the proposed conditional use would increase traffic along Route 22 and would contribute to a pre-existing traffic problem along that section of the thoroughfare. The objectors have a heavy burden to show that this proposed use will have a detrimental effect on the area, for, as our Supreme Court stated in Archbishop O'Hara's Appeal, 389 Pa. 35, 54, 131 A.2d 587, 596 (1957):

It is not any anticipated increase in traffic which will justify the refusal of a 'special exception' in a zoning case. The anticipated increase in traffic must be of such character that it bears a substantial relation to the health and safety of the community. (Emphasis in original.) A prevision of the effect of such an increase in traffic must indicate that not only is there a likelihood but a high degree of probability that it will affect the safety and health of the community, and such prevision must be based on evidence sufficient for the purpose. Until such strong degree of probability is evidenced by legally sufficient testimony no court should act in such a way as to deprive a landowner of the otherwise legitimate use of his land. (Emphasis added.)

Prior cases in which special exceptions or conditional uses have been refused due to traffic difficulties have involved situations wherein applicants for such uses sought to establish new businesses, and the court upheld the zoning boards' determinations that the ingress and egress of traffic caused by those new businesses would create detrimental and abnormal traffic patterns. See Marple Township Appeal, 440 Pa. 508, 269 A.2d 699 (1970); Blair v. Board of Adjustment,

[ 59 Pa. Commw. Page 486403]

Pa. 105, 169 A.2d 49 (1961); Cherbel Realty Corp. v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 137, 285 A.2d 905 (1972). In the present case, the drive-through window was only a modification of an existing restaurant, an established business, for which traffic patterns have already been likewise established, and the record indicates that the objectors have presented insufficient evidence to establish the necessary "high probability" that an increase of only 11 cars per day entering and leaving the premises would cause an abnormal or adverse effect on traffic congestion, see Zoning Hearing Board v. Konyk, supra, or that the line of cars waiting to use the drive-through window would exceed the number for which the appellee has planned and provided.

We will affirm the order of the court below.


And Now, this 4th day of June, 1981, the order of the Court of Common Pleas of Dauphin County in the above-captioned matter is affirmed.

Judge Wilkinson, Jr. did not participate in the decision in this case.



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