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decided: September 1, 1982.


Appeal from the Order of the Court of Common Pleas of Monroe County in cases of Township of Paradise v. Mt. Airy Lodge, Inc., 788 June Term, 1979, and Mt. Airy Lodge, Inc. v. Zoning Hearing Board of Paradise Township and Township of Paradise, No. 2525 of 1980.


Robert S. Bennett, Jr., Trevaskis, Calhoun, Slama & Bennett, for appellant.

Richard E. Deetz, with him George Royal IV, for appellee.

President Judge Crumlish and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge Craig.

Author: Craig

[ 68 Pa. Commw. Page 550]

Pursuing its challenge that zoning is exclusionary, Mt. Airy Lodge appeals an order of the Court of Common Pleas of Monroe County, which affirmed the decision of the Zoning Hearing Board of Paradise Township denying Mt. Airy's appeal*fn1 from a cease-and-desist order, issued under the township's zoning ordinance, that Mt. Airy cease excavation of shale from its property,*fn2 and which also enjoined Mt. Airy from such shale excavation.

In particular, Mr. Airy asserts that the township's zoning ordinance, which does not provide for an industrial zone, is exclusionary because it expressly prohibits commercial shale excavation under Section 3.5.5, which provides:

Section 3.5 Prohibited Uses in all Districts

The following uses are expressly prohibited in any Zoning District:

[ 68 Pa. Commw. Page 5513]

.5.5 Sandpits, gravel pits, peat bogs, and the extraction or removal of any natural resource from the land for the express purpose of commercial gain or profit. The excavation, extraction or removal of any natural resources from the land for any purpose other than for commercial gain or profit may be permitted for a temporary period upon the issuance of a special permit by the Township Supervisors.

The township has sought to justify that explicit total exclusion by pointing to two quarries within the township now operating as nonconforming uses,*fn3 and arguing that the prohibition, in the context of those nonconforming uses, bears a substantial relationship to the township's public health, safety, morals and general welfare, including the preservation of the rural-recreational environment that forms the basis of the township's tourist industry.*fn4

Of course, where, as here, the common pleas court took no additional evidence,*fn5 our scope of review is limited to determining whether the zoning board committed a manifest abuse of discretion or an error of law. General Battery Corp. v. Alsace Township, 29 Pa. Commonwealth Ct. 498, 371 A.2d 1030 (1977). The question confronting us is whether the board committed an error of law by upholding the validity

[ 68 Pa. Commw. Page 552]

    of the township's zoning ordinance. We hold that error was committed.

In exclusionary zoning cases generally, the analytical approach involves determining:

1. Does the ordinance expressly exclude the use entirely from the municipality, or, if it allows the use to some extent, is it nevertheless exclusionary because it allows less than a "fair share?"

2. Is the exclusion prima facie valid because the use is objectionable by nature?

3. If the use is not an objectionable type, has the municipality initially shown justification for the exclusion?

1. Exclusionary Effect

This township's ordinance flatly excludes all extraction and therefore is exclusionary as to the requested shale removal use.

Although the township has used the phrase "fair share," that standard, enunciated in Township of Willistown v. Chesterdale Farms, Inc., 462 Pa. 445, 341 A.2d 466 (1975), is involved only where a partial exclusion amounts to mere tokenism; as stated in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 194, 382 A.2d 105, 111 (1977), "[w]here the amount of land zoned as being available [for the use] is disproportionately small . . ., the ordinance will be held to be exclusionary."

With the present exclusion being total, we do not talk about "fair share." Therefore, the discussion of the effect of nonconforming uses in Ryan, Pennsylvania Zoning Law and Practice, ยง 3.5.5 (Rev. ed. 1979), cited by the township, is inapplicable; we consider below the existence of nonconforming uses as a factual element in deciding if the exclusion is justified.

[ 68 Pa. Commw. Page 5532]

. Nature of the Excluded Use as Objectionable or Not

In Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971), the court set forth certain attributes which would characterize a land use as so undesirable that a total prohibition would be prima facie justified, saying:

Common knowledge indicates that certain types of business activities, by reason of the particularly objectionable quality of those activities, are undesirable land uses and total prohibition would appear prima facie to be designed to protect those public interests which zoning statutes permit municipalities to protect. . . . Were this ordinance to ban from the borough an activity generally known to give off noxious odors, disturb the tranquility of a large area by making loud noises, have the obvious potential of poisoning the air or the water of the area, or similarly have cleared deleterious effects upon the general public, the situation would be entirely different from that in the instant case.

Id. at 575-76, 285 A.2d at 504.

[ 68 Pa. Commw. Page 554]

Thus, Beaver provides that a municipality need not make provision for every kind of use. Appeal of Green and White Copter, Inc., 25 Pa. Commonwealth Ct. 445, 450, 360 A.2d 283, 285.*fn6 However, in Armitage Page 554} Appeal, 39 Pa. Commonwealth Ct. 411, 395 A.2d 678 (1978), we held that a zoning ordinance which totally excluded mining as a permitted use did not appear prima facie to be designed to protect those public interests which zoning statutes permit municipalities to protect.*fn7

The legitimacy, or non-objectionable nature, of quarrying as such was discussed in Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 59-60, 228 A.2d 169, 179 (1967), where our Supreme Court said:

The constitutionality of zoning ordinances which totally prohibit legitimate businesses such as quarrying from an entire community should be regarded with particular circumspection; for unlike the constitutionality of most restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate businesses cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community. . . [Thus] we believe that a zoning ordinance which totally excludes a particular business for an entire municipality

[ 68 Pa. Commw. Page 555]

    must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area in the municipality.

Hence the present exclusion is not prima facie valid, so that justification for the exclusion becomes the pivotal question.

3. Justification

In Beaver, 445 Pa. at 576, 285 A.2d at 504, the Supreme Court articulated a principle beyond the presumption in favor of the validity of ordinances, by explaining:

We believe that at least in those circumstances where a total municipality-wide prohibition of an activity which, on its face, does not give rise to an indication of the protection of a legitimate public interest controllable by zoning laws, the applicant has met his burden by showing the total prohibition and the municipality must then establish the legitimacy of the prohibition by evidence establishing what public interest is sought to be protected.

Therefore, to use the same terms as they employed by the Supreme Court in its statement of the precise question which was decided in Beaver, 445 Pa. at 574, 285 A.2d at 503, the township here must "bear the initial burden of demonstrating the constitutionality of a zoning ordinance which completely prohibits an otherwise legitimate business operation in the municipality." (Emphasis added) Although no majority opinion of the Supreme Court has yet confirmed the Beaver concurring opinion view*fn8 that the "initial burden,"

[ 68 Pa. Commw. Page 556]

    precisely speaking, is the duty of going forward with evidence rather than a shift of the persuasion burden, the distinction is not crucial here because we perceive that the township's factual situation has prevented its case from surmounting even the lesser hurdle.

The township's emphasis upon the nonconforming shale quarry uses does not lower that hurdle.*fn9 Although we recognize that nonconforming uses may constitute an element in a total environmental picture justifying an exclusion,*fn10 no finding here by the board

[ 68 Pa. Commw. Page 557]

(or the court) accords to the two active quarries such significance as would cause any additional quarries to have "final straw" impact.

The township has also emphasized the undesirability of the shale excavation site on Mt. Airy's property. We are mindful that even if a possibility exists that Mt. Airy's activity "may have some detrimental effects, this does not justify total exclusion of all mining facilities." Armitage Appeal, 39 Pa. Commonwealth Ct. at 415, 395 A.2d at 680.

The township asserts that the exclusion protects the natural attributes of the township which form a basis for the area's overall tourist industry and provide a recreational resource outlet for regional and local people. Ironically, Mt. Airy runs the largest resort in the township, and 95% of the shale it extracts has been for Mt. Airy's own use.*fn11 Furthermore, the board found that Mt. Airy intends to restore the shale pit after excavation is complete.*fn12

Nevertheless, that the board found generally that the permanent establishment of shale pits in the township would have a negative impact on tourism and upon the resort environment.*fn13 However, this general finding, especially in the context of the board's specific findings, cannot be said to bear a "sufficiently substantial relationship to the public health, safety, morals and general welfare to justify its prohibition." Exton Quarries, 425 Pa. 63, 228 A.2d at 181.

The township also emphasizes the safety hazard presented by the use of Red Rock Road, a state road off which is located Mt. Airy's excavation site. The

[ 68 Pa. Commw. Page 558]

    board found that the use of Red Rock Road by heavy trucks presents a safety hazard because of the narrow width, the lack of sight distances, the steep grades and the winding roads.*fn14 The inadequacy of particular roads must be considered in view of our Supreme Court's recognition, in National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 528, 215 A.2d 597, 610 (1965), that although roads may become "increasingly inadequate as time goes by and that improvements and additions will eventually have to be made. Zoning provisions may not be used, however, to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring." Furthermore, notwithstanding the safety problems of Red Rock Road, the township in its brief, acknowledges that the existing shale pits which make use of Red Rock Road are located considerably closer to Pennsylvania Route 940, which is a state road of higher quality than Red Rock Road. Thus the township concedes that viable and safe roads exist for the excavation of shale somewhere in the township. Therefore, an entire exclusion cannot be supported on this basis.

Furthermore, the town's assertion that the noise and vibrations from the blasting associated with the quarrying justify the exclusion of shale excavation is unfounded. There are only two residences within 500 feet of the working excavation and another residence is 1200 feet from the pit. The excavation is 440 feet from the nearest property line, and the pits cannot be seen from neighboring properties. The board found no incidents of damage to the neighboring properties and expressly found that "the blasting which occurred at the applicant's property in late

[ 68 Pa. Commw. Page 559]

July 1979 did no damage to the Bullock residence which adjoins the Mt. Airy shale quarry."*fn15

Also, although the board found that "a permanent quarry operation on the [Mt. Airy Lodge land] would depress property values to some extent,"*fn16 it also found that "[r]eal estate values in the area of [Mt. Airy's quarry] have increased in value over the past ten years."*fn17

Finally, the township asserts that its long term zoning plan contemplates greater industrial use.*fn18 However, such a plan does not rectify the exclusionary zoning ordinance.

Therefore, we conclude that Mt. Airy has met its burden of establishing that the zoning ordinance is exclusionary because the township, required to show justification for this municipality-wide prohibition of

[ 68 Pa. Commw. Page 560]

    a legitimate class of use, failed to present sufficient evidence indicating that the prohibition bears a substantial relationship to the township's health, safety, morals and general welfare.*fn19

Accordingly, the decision of the court of common pleas is reversed.*fn20


Now, September 1, 1982, the order of the Court of Common Pleas of the Forty-third Judicial District, Monroe County Branch, entered on April 28, 1981, as No. 788, June Term, 1979, and No. 2525-1980-Civil, Zoning Appeal, is hereby reversed; and the record is remanded with direction to the zoning authorities of the Township of Paradise to issue the zoning permit.


Reversed and remanded.

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