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LEOPOLD SCHUSTER AND MANFRED SCHUSTER v. PLUMSTEAD TOWNSHIP ZONING HEARING BOARD (10/01/82)

decided: October 1, 1982.

LEOPOLD SCHUSTER AND MANFRED SCHUSTER, APPELLANTS
v.
THE PLUMSTEAD TOWNSHIP ZONING HEARING BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of In Re: Appeal of Leopold Schuster and Manfred Schuster from the decision of the Plumstead Township Zoning Hearing Board of June 18, 1980, No. 80-7500-13-5.

COUNSEL

Marvin L. Portney, for appellants.

George M. Bush, with him Stephen B. Harris, Hartzell & Bush, for appellee.

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

Author: Blatt

[ 69 Pa. Commw. Page 272]

Leopold and Manfred Schuster (appellants) appeal an order of the Court of Common Pleas of Bucks County which affirmed a decision of the Zoning Hearing Board (Board) of Plumstead Township (Township) denying their constitutional challenge of an ordinance which prohibits "junk, salvage or automobile wrecking yards" within the Township.

The appellants propose to conduct an automobile wrecking and recycling center on a 4.7 acre tract which, when full, would hold as many as 1000 vehicles. Under the proposed use, they would acquire approximately 20 late model wrecked automobiles and trucks per week from insurance company salvagers and would then strip these vehicles of useable parts for on-site resale from a proposed 50' by 100' building. The remains would be stacked, in rows 20 to 25 feet high, by a crane which would be located there, and

[ 69 Pa. Commw. Page 273]

    the entire site would be surrounded by an eight-foot fence. Periodically, the stacks would be crushed and removed from the premises.

Because the trial court received no additional testimony, our scope of review is limited to a determination of whether or not the Board abused its discretion or committed an error of law. Harper v. Zoning Hearing Board of Ridley Township, 21 Pa. Commonwealth Ct. 93, 343 A.2d 381 (1975). The appellants maintain that the Board erred as a matter of law in denying them permission to conduct their automobile wrecking and recycling operation on their property.

Where, as here, a zoning ordinance totally excludes a use from a Township, we must first determine whether or not such exclusion is prima facie valid because the use is objectionable or illegitimate by nature. Township of Paradise v. Mt. Airy Lodge, Inc., 68 Pa. Commonwealth Ct. 525, 449 A.2d 849 (1982); Appeal of Green & White Copter, Inc., 25 Pa. Commonwealth Ct. 445, 360 A.2d 283 (1976). If the use is found to be objectionable or illegitimate, then the ordinance retains its presumption of validity and the party who challenges it bears the burden of proving its unconstitutionality. Green & White Copter. However, if the use is found to be legitimate or non-objectionable, the burden then shifts to the Township to establish that the ordinance bears a "substantial relationship to public health, safety, morals and general welfare." Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 60, 228 A.2d 169, 179 (1967) (quarrying operation within a township held to be a legitimate use); see also Beaver Gasoline Company v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971); Mt. Airy Lodge; Green & White Copter.

[ 69 Pa. Commw. Page 274]

Initially, the appellants argue that their proposed operation would constitute a legitimate business not objectionable by nature and that the Board and the trial court erred in concluding to the contrary. In Township of Harborcreek v. Christopher, 184 Pa. Superior Ct. 205, 209-210, 132 A.2d 714, 716 (1957), the court, in describing the nature of an automobile salvage yard, and in finding that such use could not be prohibited by ordinance as a nuisance per se,*fn1 stated that "[t]he business of operating [an automobile] junk yard is a legitimate enterprise which, while offending the aesthetic taste, does not constitute a dangerous business or one known to be inherently injurious or harmful to the public." Decisions by the courts of this Commonwealth and other states support this observation. See, e.g., Commonwealth v. Hanzlik, 400 Pa. 134, 161 A.2d 340 (1960); Kadash v. City of Williamsport, 19 Pa. Commonwealth Ct. 643, 340 A.2d 617 (1975); Bachman v. State, 235 Ark. 339, 359 S.W. 2d 815 (1962); Township of Garfield v. Young, 348 Mich. 337, 82 N.W. 2d 876 (1957); Township of Andover v. Lake, 89 N.J. Super. 313, 214 A.2d 870 (1965); Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341, 34 A.2d 188 (1943). We ...


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