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.
[ 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 ...