decided: September 14, 1983.
STRASBURG ASSOCIATES I AND STRASBURG ASSOCIATES II, APPELLANTS
WEST BRADFORD TOWNSHIP, APPELLEE
Appeal from the Order of the Court of Common Pleas of Chester County in the case of West Bradford Township v. Strasburg Associates I and Strasburg Associates II, No. 257 October Term, 1979.
Thomas A. Riley, Jr., with him John C. Snyder, Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for appellants.
Robert B. Surrick, Levy & Surrick, for appellee.
Judges Rogers, Craig and MacPhail. Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 77 Pa. Commw. Page 167]
This is an appeal from an order of the Chester County Court of Common Pleas which found Appellants guilty of violating the West Bradford Township Zoning Ordinance. We reverse.
Appellants, Strasburg I Associates and Strasburg II Associates, are the owners of a tract of land located in both Newlin Township and West Bradford Township, Chester County. Appellants operate a sanitary landfill on the Newlin Township portion of their tract. The West Bradford Township portion, consisting of seventy-five acres, is zoned R-1 residential and cannot be used for landfill.
In 1976 Appellants attempted to construct a driveway through the West Bradford portion of their tract to access the Newlin Township landfill. On October 14, 1976 West Bradford Township issued a cease and desist order against this construction. This order was upheld by the West Bradford Township Zoning Hearing Board, and the matter was then appealed to the Chester County Court of Common Pleas.
While that appeal was pending, the Appellants submitted a subdivision plan to West Bradford Township under which a private road would be constructed through the seventy-five acre West Bradford portion of their tract, dividing the tract into two residential sections. The private road was to run from the adjoining public highway to the Newlin Township border, thus giving access to the Appellants' adjacent landfill. On April 12, 1977 West Bradford Township approved this subdivision plan. Concurrent with the approval, Appellants and West Bradford Township entered into a subdivision agreement under which Appellants agreed to certain concessions, including withdrawal of their zoning appeal pending before the court of common pleas, in exchange for township approval of their subdivision plan.
[ 77 Pa. Commw. Page 168]
Appellants constructed the private road, and in 1979 began their landfill operation, using the road as an access route. Soon thereafter West Bradford Township filed a complaint in equity, seeking to enjoin Appellants' landfill operation on the basis of their failure to abide by the terms of the subdivision agreement.*fn1 The Chester County Court of Common Pleas denied a request for preliminary injunction, and the complaint was later withdrawn.*fn2
On September 11, 1979 the West Bradford Township zoning officer cited the Appellants for using their private road for commercial purposes within an R-1 zoning district which prohibits such commercial use. After a finding of not guilty by the District Court, the Chester County Court of Common Pleas held a hearing de novo on November 11, 1979. On April 21, 1980 the court found the Appellants guilty of violating the zoning ordinance and issued a $100 fine. Appellants appeal from the court's order of November 25, 1980 denying Appellants' exceptions to the adjudication of guilt.*fn3
The issue raised on appeal is whether a private road is subject to the use restrictions of the residential
[ 77 Pa. Commw. Page 169]
zoning district in which it is located. The private road in question is considered a street for purposes of the West Bradford Township Zoning Ordinance (Ordinance) which defines a street to include both public and private roads.*fn4 The Ordinance obviously contemplates that such streets will be included in every district, as restrictions such as set-back and lot size are defined in relation to streets. Nowhere in the zoning ordinance, however, are streets themselves regulated as to their use. In the R-1 zoning district, in which Appellants' street is located, the Ordinance fails to specifically list "streets" among any of the permitted uses for that district.*fn5 Moreover, each of the permitted uses is required to have a minimum "lot area,"*fn6 which by definition does not include the right of way of a street.*fn7 From these facts we are led to conclude that the zoning ordinance does not regulate the use of streets, and that the use restrictions applicable to various zoning districts do not apply to the use of streets therein.
West Bradford Township argues that the holding in Atria, Inc. v. Mount Lebanon Township Board of Adjustment, 438 Pa. 317, 264 A.2d 609 (1970), controls in this situation. In Atria, it was held that a driveway located on a lot zoned for residential purposes could not be used as a means of access for an adjoining commercial
[ 77 Pa. Commw. Page 170]
parking lot. We find this holding inapplicable to the present facts. The Appellants' private road is not a driveway located on a lot, as was the case in Atria. Rather, it is an approved street existing outside of any residential lot.*fn8 Unlike a driveway, the private road is not an accessory use of a lot nor can it be regulated as such.
Finally, West Bradford Township argues that the private road is a driveway because Appellants have abandoned whatever rights they had under the subdivision plan by their alleged breach and renunciation of the separate subdivision agreement. The dispute concerning the subdivision agreement and its relationship to the subdivision approval has been the subject of related litigation, some of which is still pending.*fn9 We need not reach the issue here, however, for a review of the record reveals that at the time of the zoning citation, an approved and recorded subdivision plan was in existence. No official action had been taken to deny or otherwise invalidate Appellants' right to proceed with the subdivision.*fn10 Therefore, whatever the rights or obligations under the subdivision agreement, the fact remains that a zoning citation was issued against the use of a private road which, as an approved street, was not properly the subject of zoning regulations under the Ordinance.
[ 77 Pa. Commw. Page 171]
For these reasons we find that the Appellants were not guilty of a zoning violation, and accordingly reverse the order of the Court of Common Pleas.
Now, September 14, 1983, the order of the Court of Common Pleas of Chester County in the above referenced matter, dated November 25, 1980, is hereby reversed.