Appeal from the Order of the Court of Common Pleas of Chester County in case of CSS Corporation v. Zoning Hearing Board of Willistown Township and Township of Willistown and Rose and Soski Piroeff, No. 158 February Term, 1980.
Robert J. Shenkin, MacElree, Harvey, Gallagher, O'Donnell & Featerman, Ltd., for petitioner.
Ronald M. Agulnick, with him Sondra K. Slade, Pitt, Agulnick, Supplee, Johnson and Slade, for respondents.
Phillip D. Weiss, with him Thomas J. Speers, McTighe, Weiss & Stewart, for intervening respondents, Rose and Soski Piroeff.
Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 284]
In this zoning appeal, appellant Willistown Township seeks reversal of an order of the Court of Common Pleas of Chester County directing the issuance of a building permit to the appellee landowner, CSS Corporation (CSS).
In 1979 CSS applied for a building permit to construct a single family dwelling on Lot No. 1 of the "Old Covered Bridge Estates" in Willistown Township. The Township Zoning Officer denied the application on the grounds that the proposed dwelling would be located within one hundred (100) feet of the high water mark of a stream which bisects the lot and in an
[ 64 Pa. Commw. Page 285]
area known to be subject to flooding, in violation of Section 1413 of the Willistown Township Zoning Ordinance. This section provides:
Where a lot abuts a stream, lake or similar body of water, no dwelling or appurtenance thereto shall be constructed within one hundred (100) feet of the high water mark of such body of water; and no dwelling or other building or structure shall be constructed in an area known to be subject to flooding.*fn1
CSS appealed to the Township Zoning Hearing Board (Board) seeking a variance or special exception and challenging the substantive validity of the ordinance. The Board conducted extensive hearings, and thereafter rendered a decision denying the request for a variance or a special exception and dismissing the appeal.
Because the term "high water mark" is not defined in the Township Zoning Ordinance, the Board turned to testimony concerning accepted usage among civil engineers for guidance as to its meaning. In reliance upon such testimony, the Board found that the one hundred year flood plain*fn2 is the generally accepted standard in Chester County for determining the "high water mark" of a body of water. Since the proposed dwelling location is, at its nearest point, between fourteen (14) and twenty-three ...