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APPEAL MT. LAUREL RACING ASSOCIATION ET AL. v. ZONING HEARING BOARD (04/20/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 20, 1983.

APPEAL OF MT. LAUREL RACING ASSOCIATION ET AL.
v.
ZONING HEARING BOARD, MUNICIPALITY OF MONROEVILLE. MT. LAUREL RACING ASSOCIATION AND SEACH DEVELOPMENT COMPANY, AGENT FOR MT. LAUREL RACING ASSOCIATION, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Appeal of Mt. Laurel Racing Association and Seach Development Company, agent for Mt. Laurel Racing Association v. Zoning Hearing Board, Municipality of Monroeville v. Municipality of Monroeville v. Citizens Against the Racetrack, No. SA 1554 of 1981.

COUNSEL

William R. Grove, Jr., Hollinshead and Mendelson, for appellants.

Lee R. Golden, for appellee.

John D. Finnegan, for intervenor, Municipality of Monroeville.

Carl G. Cooper, for intervenor, Citizens Against the Racetrack.

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

Author: Blatt

[ 73 Pa. Commw. Page 533]

Mount Laurel Racing Association and its agent, Seach Development Company (appellants) appeal here an order of the Court of Common Pleas of Allegheny County which affirmed a decision of the Zoning Hearing Board (Board) of the Municipality of Monroeville (Municipality). That decision denied the appellants' request for approval of a conditional use application for development of a harness racing facility.*fn1

Our scope of review, in zoning appeals, where, as here, the common pleas court does not take additional evidence, is to determine whether or not the Board abused its discretion or committed an error of law. Goodman v. Board of Commissioners of the Township of South Whitehall, 49 Pa. Commonwealth Ct. 35, 411 A.2d 838 (1980).

The appellants had applied for permission to build a harness racing facility in the Municipality's M-2 Heavy Industrial District, for which the applicable zoning ordinance section provides in pertinent part:

SECTION 1201 : USE: In this district land and structures may be used and structures may be erected, altered, enlarged and maintained for the limited special uses hereunder, but including the retail sale of products when such sale is clearly incidental to the permitted industrial use.

1201.1 Any use permitted in the "M-1" District, Section 1101 other than business or professional office. (Emphasis added.)

Section 1101 of the ordinance which relates to the Planned Light Industrial District, provides:

[ 73 Pa. Commw. Page 534]

    racing as a recreation activity.*fn3 Bond likewise quoted from judicial sources noting that, in A.G. v. Cooma Municipal Council, [1962] N.S.W. St. R. 663 at 667, it was held that:

A public library is source of public recreation in the same way as a public racecourse, even though it may not be frequented by as large a number of persons.*fn4

The municipality and the Intervenor, Citizens Against the Racetrack (CART), argued other maxims of statutory construction. They submitted that the ordinance

[ 73 Pa. Commw. Page 537]

    must be read as a whole with due regard to the intent of the drafters.*fn5 See Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commonwealth Ct. 129, 358 A.2d 433 (1976). This, of course, is true. They also noted correctly that legislative intent is considered the polestar of statutory construction. Olson v. Brumbaugh, 71 Pa. Commonwealth Ct. 471, 454 A.2d 1203 (1983). Yet, an examination of the entire ordinance indicates that, while recreational uses are permitted elsewhere in the Municipality, the sections governing the recreational uses in these other districts are more restrictive. In Residential Districts only publicly-owned recreation areas are permitted generally and only non-profit recreation areas are permitted as conditional uses. Likewise, the Conservancy District permits only non-profit recreation areas as a conditional use. On the other hand, the allowance of a recreational use in the M-2 District is completely unrestricted. There are no limitations as to type, size, ownership, profitability or any other aspect or characteristic of the use. And, inasmuch as the legislative objectives are expressed in Section 109 of the ordinance, and they include the providing of recreational facilities, we do not believe the allowance of a race course in an M-2 District frustrates the legislative scheme.

[ 73 Pa. Commw. Page 538]

The Board made the following Findings of Fact:

24. The dictionary definition of the word "recreation" as proposed by the Applicant is much too broad for land use connotation.

25. Recreation as a land use is not usually defined in a Zoning Ordinance, and in any event, is much smaller in scale than any proposed harness racing facility with ancillary uses as proposed by the Applicant.

These findings, however, are actually conclusions of law and, as such, are clearly in error.

We must, therefore, reverse the trial court's order and remand for proceedings consistent with this opinion.*fn6

Order

And Now, this 20th day of April, 1983, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby reversed and the case remanded to that court so that it in turn will remand the matter with directions to the Zoning Hearing Board for consideration of any conditions which need be imposed consistent with this opinion.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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