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CROWN WRECKING COMPANY v. ZONING HEARING BOARD ROSS TOWNSHIP (01/21/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 21, 1983.

CROWN WRECKING COMPANY, INC.
v.
ZONING HEARING BOARD OF ROSS TOWNSHIP, ET AL. BOARD OF COMMISSIONERS OF ROSS TOWNSHIP, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Crown Wrecking Company, Inc. v. Zoning Hearing Board of Ross Township and Joseph and Margaret Scheuring, and Wilton and Dorothy Bauman, and Warren and Janet Leighliter, and the Township of Ross, No. SA 443 of 1977.

COUNSEL

William W. Milnes, Brandt, Milnes, Rea & Wagner, for appellant.

John R. Dingess, with him Donald E. Seymour, Kirkpatrick, Lockhart, Johnson & Hutchison, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge MacPhail.

Author: Macphail

[ 71 Pa. Commw. Page 311]

This case comes to us on appeal from a decision of the Court of Common Pleas of Allegheny County reversing the Zoning Hearing Board (Board) of Ross Township and ordering Ross Township municipal officials to issue to Crown Wrecking Company (Crown) appropriate use permits to allow Crown to continue to operate its commercial demolition landfill.

The tract of land at issue in this case is located within a residential district in Ross Township. In 1976 neighboring landowners, taking issue with Crown's use of the property as a landfill, brought an action in equity to enjoin Crown's usage. The trial court, after a hearing on the matter, ordered the Ross Township zoning officer "to register or not to register the property"*fn1 as a prior non-conforming use. The zoning officer registered Crown's use as non-conforming and an appeal to the Board was taken by neighboring landowners. The Board reversed the zoning officer and Crown appealed to the Court of Common Pleas. That Court*fn2 ordered the case remanded to the Board for the consideration of factual and legal issues not previously considered.

On remand, the Board held further hearings concerning the usage of this property. Crown asserted

[ 71 Pa. Commw. Page 312]

    four separate legal grounds in support of its claim to use the property as a landfill:

1) that Crown had a right to a variance;

2) that the Ross Township ordinance unconstitutionally excluded landfills;

3) that the use as a landfill was a prior non-conforming use; and

4) that the Township was estopped from denying Crown the right to use the premises as a landfill.

In a decision issued November 10, 1980, the Board found against Crown on all four grounds. Crown then perfected its appeal to the Common Pleas Court. That Court, without taking further evidence, affirmed the Board's conclusions concerning the "traditional" variance claim and the non-conforming use claim, but it reversed the Board on the exclusionary challenge and the "variance by estoppel" claims and, as we have noted, ordered the issuance of the appropriate permits. The Board of Commissioners of Ross Township (Commissioners) filed the present appeal from that order.

The Board, the Common Pleas Court and both parties to this action all agree that the Ross Township Zoning Ordinance totally excludes the operation of a commercial landfill throughout Ross Township. The Board justified such an exclusion on the basis that "the residents within the vicinity of the . . . landfill have been subjected to disturbances . . . , air pollution, noise pollution, . . . [and] safety hazards on the public roadways in the vicinity. . . ."*fn3 However, this Court, in the recent decision of Moyer's Landfill, Inc. v. Zoning Hearing Board of Lower Providence Township, 69 Pa. Commonwealth Ct. 47, 450 A.2d 273, 278 (1982) has held that evidence limited to the detrimental effects

[ 71 Pa. Commw. Page 313]

    of a use on a site and its nearby environs would be insufficient to defeat a constitutional challenge to a municipality-wide exclusion. We consider Moyer's Landfill to be controlling in the instant case*fn4 and we therefore affirm the Common Pleas Court.*fn5

[ 71 Pa. Commw. Page 314]

Order

The order of the Court of Common Pleas of Allegheny County, No. SA 443 of 1977, dated August 18, 1981, is hereby affirmed.

Disposition

Affirmed.


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