Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

FRACKVILLE AREA MUNICIPAL AUTHORITY v. ZONING HEARING BOARD BUTLER TOWNSHIP (10/21/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 21, 1982.

FRACKVILLE AREA MUNICIPAL AUTHORITY, APPELLANT
v.
THE ZONING HEARING BOARD OF BUTLER TOWNSHIP, BUTLER TOWNSHIP AND THE BOROUGH OF ASHLAND, APPELLEES

Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of Frackville Area Municipal Authority v. The Zoning Hearing Board of Butler Township and Butler Township and The Borough of Ashland, Intervenors, No. S-1004-1981.

COUNSEL

Paul Domalakes, with him John E. Domalakes, Rubright, Domalakes, Troy & Miller, for appellant.

Frank J. Toole, Toole, Toole & Toole, for appellees, the Zoning Hearing Board of Butler Township and Butler Township.

Jan P. Paden, Rhoads, Sinon & Hendershot, for intervening appellee, The Borough of Ashland.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 69 Pa. Commw. Page 417]

Frackville Area Municipal Authority appeals an order of the Court of Common Pleas of Schuylkill County affirming a decision of the Butler Township Zoning Hearing Board which denied the authority's application for a "special exception and/or variance" to construct a wastewater treatment plant on a 7.8 acre site zoned "Woodland Conservation" under Butler Township's zoning ordinance.

The board had initially denied the authority's application on the ground that the authority had not obtained plan approval under the subdivision ordinance.*fn1

On appeal, the common pleas court first remanded the case to the board for findings of fact and conclusions, to comply with Section 908 of the Municipalities Planning Code (MPC).*fn2 The board then issued a new decision*fn3 in which it stated that the authority's request for a special exception could not be granted because

[ 69 Pa. Commw. Page 418]

    the ordinance makes no provision for special exception uses in the Woodland-Conservation district, and that no variance could be granted because the authority did not prove that the site could not be used as zoned. On January 5, 1981, the common pleas court, without taking additional evidence, affirmed the board.*fn4

The board properly denied the authority's request for a special exception because the ordinance makes no such provision in the Woodland-Conservation district. Lower Merion v. Enokay, Inc., 427 Pa. 128, 233 A.2d 883 (1967).

The authority had the burden of proving, among other things,*fn5 that, because of unique physical conditions, the site cannot be developed in conformity with the ordinance. J. R. Greene Associates v. Zoning Hearing Board, 56 Pa. Commonwealth Ct. 605, 426 A.2d 175 (1981). Single-family homes are among the permitted uses in the Woodland-Conservation district.*fn6 We have reviewed the record and find no evidence

[ 69 Pa. Commw. Page 419]

    to establish that homes cannot be built on the site. Although the authority's expert engineer testified that the site is "fairly swampy" and not desirable for residential construction because of a high water table, he did not testify that the land could not be used for homesites.*fn7

The whole thrust of the authority's evidence and argument is that the sewage treatment plant is greatly needed, that other sites are not available and that the site involved in this case is very appropriate for such a plant. Although one may grant all those points to be true, they do nothing to establish the "hardship" -- i.e., unusability under the ordinance -- which must be shown for variance entitlement, as required by Section 912 of the MPC. At best, they are policy arguments for a rezoning, not a variance.

Because we decide that the board did not abuse its discretion by denying the authority a variance, we affirm. H.A. Steen Industries v. Zoning Hearing Board of Bensalem Township, 39 Pa. Commonwealth Ct. 451, 396 A.2d 66 (1978).

[ 69 Pa. Commw. Page 420]

Order

Now, October 21, 1982, the order of the Court of Common Pleas of Schuylkill County, Docket No. S-1004, dated January 5, 1982, is hereby affirmed.

Disposition

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.