decided: October 1, 1982.
LEOPOLD SCHUSTER AND MANFRED SCHUSTER, APPELLANTS
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.
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.
[ 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 believe, therefore, that the appellants' proposed automobile wrecking and recycling operation would be a legitimate or non-objectionable use and consequently, Mt. Airy Lodge, we must next determine whether or not the Township had justified its ordinance by establishing that it bears a substantial relationship to
[ 69 Pa. Commw. Page 275]
the public health, safety, morals and general welfare in this situation.
Our review of the record discloses testimony, much of which was given by an expert witness testifying on behalf of the Township, which supports the Board's findings that the appellants' proposed use would adversely impact upon the environment and the public.
An environmental expert, noting that the entire Township's water supply was solely from well water, testified that in his opinion various pollutants, such as ethylene glycol (used in antifreeze), battery acid, and petroleum derivatives would inevitably leak*fn2 from the wrecked vehicles and were likely to seep into the ground water or to combine with surface run-off sufficient to pose a threat*fn3 to public health, safety and
[ 69 Pa. Commw. Page 276]
welfare wherever such water was used for human consumption.
In view of the aforementioned evidence in the record, we believe that the Township has justified its total prohibition of the use proposed by the appellants. It has established an obvious and substantial relationship of such use to police power concerns, and we must, therefore, affirm the order of the trial court.
And Now, this 1st day of October, 1982, the order of the Court of Common Pleas of Bucks County in the above-captioned matter is hereby affirmed.