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BOROUGH COUNCIL CHURCHILL BOROUGH v. PAGAL (06/03/83)

decided: June 3, 1983.

BOROUGH COUNCIL OF CHURCHILL BOROUGH, APPELLANT
v.
PAGAL, INC., APPELLEE



Appeals from the Orders of the Court of Common Pleas of Allegheny County in the case of Pagal, Inc. v. Borough Council of Churchill Borough, No. SA 760 of 1981.

COUNSEL

David McNeil Olds, with him Lee S. Piatt, Reed, Smith, Shaw & McClay, and Robert W. Goehring, Solicitor, for appellant.

Robert J. Winters, Goehring, Rutter & Boehm, for appellee.

President Judge Crumlish, Jr. and Judges MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Concurring and Dissenting Opinion by Judge Doyle.

Author: Macphail

[ 74 Pa. Commw. Page 603]

The Churchill Borough Council (Council) has appealed to this Court from an order of the Court of Common Pleas of Allegheny County which reversed a Council decision upholding the constitutionality of the Borough's zoning ordinance. The court of common pleas concluded that the ordinance unconstitutionally excludes restaurants as a permitted use in the Borough.

Pagal, Inc. (Appellee) owns an unimproved tract of land in the Borough which is approximately one acre in size. The lot is located in an R-2 residential district which does not permit Appellee's proposed restaurant use. Appellee filed a challenge to the validity of the zoning ordinance with the Council together with a request for a curative amendment pursuant to Sections 609.1 and 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC).*fn1 Appellee alleged in its challenge that the ordinance is facially invalid due to its failure to allow restaurants as a permitted use in the Borough.*fn2 Following two public hearings on the challenge, Council concluded that the exclusion is constitutional because, inter alia, the Borough is highly developed and, therefore, is not a logical area for further growth and because the Borough has historically been a primarily residential community which has

[ 74 Pa. Commw. Page 604]

    received few requests for commercial development within its borders.

On appeal and without taking additional evidence, the court of common pleas reversed, finding that the Borough is a logical area for development and that an unconstitutional exclusion had been established. Council subsequently perfected its appeal to this Court.

Where, as here, the court of common pleas took no additional evidence, our review is limited to a determination of whether Council committed an error of law or a manifest abuse of discretion. General Battery Corp. v. Zoning Hearing Board, Alsace Township, 29 Pa. Commonwealth Ct. 498, 371 A.2d 1030 (1977).

As reflected by Council's own findings and conclusions, it is clear that the Borough's ordinance does not permit restaurants as a principal use. A zoning ordinance which totally excludes a legitimate business use*fn3 may be found valid only where the prohibition bears a substantial relationship to the public health, safety and general welfare. Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971). The presumed validity of an ordinance is overcome where a total exclusion of an otherwise legitimate use is established. The burden thereafter shifts to the municipality to demonstrate what interest is sought to be protected by the prohibition. Moyer's Landfill, Inc. v. Zoning Hearing Board of Lower Providence Township, 69 Pa. Commonwealth Ct. 47, 450 A.2d 273 (1982), allocatur denied, January 14, 1983; General Battery Corp.

We observe that the conclusions reached by Council in its decision on Appellee's challenge reflects that body's recognition that the zoning ordinance makes no provisions for restaurants. Council nevertheless ...


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