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FREDERICK C. FIECHTER ET AL. v. ZONING HEARING BOARD PENNSBURY TOWNSHIP AND HAROLD H. LEWIS (04/04/83)

decided: April 4, 1983.

FREDERICK C. FIECHTER ET AL., APPELLANTS
v.
ZONING HEARING BOARD OF PENNSBURY TOWNSHIP AND HAROLD H. LEWIS, JR., APPELLEES



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Frederick C. Fiechter and Eleuthera C. Fiechter, h/w and Anthony G. Scott and Carol Clement v. Zoning Hearing Board of Pennsbury Township and Harold H. Lewis, Jr., No. 34 April Term, 1980.

COUNSEL

John S. Halsted, Gawthrop, Greenwood & Halsted, for appellants.

William J. Gallagher, with him Michael G. Louis, MacElree, Harvey, Gallagher, O'Donnell & Featherman, Ltd., for appellee/intervenor.

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

Author: Macphail

[ 73 Pa. Commw. Page 254]

Appellants*fn1 have brought this appeal from a decision and order of the Court of Common Pleas of Chester County which affirmed the order of the Zoning Hearing Board (Board) of Pennsbury Township granting the application of Harold H. Lewis, Jr. for a special exception to operate a portion of his gasoline service station as a mini-market.*fn2 We reverse.

The property in question in this case is located in the Township's AR Zone. The use of the property as a service station is as a nonconforming use. Lewis has agreed to discontinue painting vehicles, working on wrecked vehicles and storing wrecked vehicles on the premises in exchange for a permit to use approximately 1/3 to 1/2 of the existing building area as a mini-market, also a use which is not permitted in the AR Zone.

Section 1200(2) of the Pennsbury Township Zoning Ordinance of 1972 is relevant to the disposition of this case. That section provides:

A non-conforming use may be changed to another non-conforming use by grant of special exception only upon determination by the Zoning

[ 73 Pa. Commw. Page 255]

Hearing Board, after public hearing, that the proposed new use will be no more detrimental to its neighborhood and surroundings than is the use it is to replace. In determining relative detriment, the Zoning Hearing Board shall take into consideration, among other things, traffic generated; nuisance characteristics, such as emission of noise, dust and smoke; fire hazards; and hours and manner of operation.

The Board, after a hearing, determined that Lewis' "new use" would be no more detrimental than "the use it is to replace" and granted him a special exception. Appellants filed an appeal to the Court of Common Pleas, which, after receiving no further evidence, determined that the mini-market was a "substitution" for the "separate" use of storage and repair of wrecked vehicles and painting of vehicles.*fn3 The Court determined this was a valid change under Section 1200(2) and that the Appellants failed to ...


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