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LOWER SOUTHAMPTON TOWNSHIP BOARD SUPERVISORS v. HERBERT SCHURR (02/28/83)

decided: February 28, 1983.

LOWER SOUTHAMPTON TOWNSHIP BOARD OF SUPERVISORS, APPELLANT
v.
HERBERT SCHURR, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Herbert Schurr v. Lower Southampton Township Board of Supervisors, No. 81-05159-12-5.

COUNSEL

Pamela R. Reiss, Lawler and Gonzales, for appellant.

E. Dillwyn Darlington, for appellee.

George M. Bush, for Amici Curiae.

Judges Rogers, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 72 Pa. Commw. Page 323]

The Lower Southampton Township Board of Supervisors (Board) has appealed from an order of the Court of Common Pleas of Bucks County which reversed a decision of the Board and concluded that the zoning ordinance of Lower Southampton Township

[ 72 Pa. Commw. Page 324]

(Township) unconstitutionally excludes automobile salvage yards. We affirm.

The record in this case reflects that Herbert Schurr (Appellee) filed a request for a curative amendment with the Board pursuant to Sections 609.1 and 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC)*fn1 on or about July 24, 1980.*fn2 Appellee proposes to use a 19.15-acre tract of land as an automobile salvage yard for the dismantling of automobiles and on-site sales of the used automobile parts. Appellee anticipates that up to 500 automobile "shells" will be stored on the property at any given time. Appellee alleges in his written request for a hearing on his challenge that the zoning ordinance totally excludes automobile salvage yards and is, therefore, invalid. After several hearings on the challenge, the Board concluded, inter alia, that Appellee lacked standing to institute the challenge and that, in any event, the ordinance does make provision for automobile salvage yards and, thus, is constitutional. Appellee prevailed in his appeal to the court of common pleas and the Board subsequently perfected its appeal to this Court.

The following issues have been presented for our consideration: 1) whether Appellee had standing to file a request for a curative amendment*fn3 and 2) if so, whether the Township's zoning ordinance unconstitutionally excludes automobile salvage yards.

[ 72 Pa. Commw. Page 325]

Where, as here, the court of common pleas has taken no additional evidence, our scope of review is limited to a determination of whether the Board committed an abuse of discretion or an error of law. Township of Paradise v. Mt. Airy ...


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