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APPEAL WILLIAM FARRELL FROM DECISION WORCESTER TOWNSHIP ZONING HEARING BOARD. WILLIAM FARRELL v. WORCESTER TOWNSHIP BOARD SUPERVISORS (09/14/84)

decided: September 14, 1984.

APPEAL OF WILLIAM FARRELL FROM DECISION OF WORCESTER TOWNSHIP ZONING HEARING BOARD. WILLIAM FARRELL, APPELLANT. WILLIAM FARRELL, APPELLANT
v.
WORCESTER TOWNSHIP BOARD OF SUPERVISORS, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Montgomery County in cases of Appeal of William Farrell from decision of Worcester Township Zoning Hearing Board, Nos. 80-22847 and 81-15993.

COUNSEL

Norman P. Zarwin, with him, Charles B. Stokes, Jr., Zarwin and Baum, P.C., for appellant.

Jerome B. Nulty, Clemens, Nulty and Gifford, for appellee, Worcester Township Zoning Hearing Board.

Judges MacPhail, Colins and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 85 Pa. Commw. Page 165]

William Farrell (Appellant) has brought two appeals, which have been consolidated for our consideration, from decisions of the Court of Common Pleas of Montgomery County. The first appeal, docketed to No. 1433 C.D. 1983, challenges the court's affirmance of the decision of the Worcester Township Zoning Hearing Board (ZHB) to deny Appellant the right, by accessory use status or special exception, to rent trailers, vans and trucks from his existing gasoline service station. In the second appeal, docketed at No. 1375 C.D. 1983, Appellant challenges the denial of his curative amendment application by the Worcester Township Board of Supervisors (Board of Supervisors) and, on appeal, by the court of common pleas.

Appellant owns and operates a gasoline service station which is located in a "C" Commercial District in Worcester Township. Gasoline service stations are a permitted use within the district; however, Section 2100(P) of the Township's zoning ordinance provides that such use "shall not include the keeping of vehicles for sale, rent, or storage."

On March 14, 1980, Appellant entered into an agreement with Jartran, Inc. to lease Jartran trailers, trucks and vans from his service station. The actual rentals began in May, 1980. On or about June 26, 1980, Appellant was notified by the Township zoning officer that his rental business violated the zoning ordinance. Appellant subsequently applied to the ZHB to gain either accessory use status or a special exception to permit continuation of his leasing activities. Following the denial of his application by the ZHB, Appellant filed a request for a curative amendment with the Board of Supervisors pursuant to Sections 609.1 and

[ 85 Pa. Commw. Page 1661004]

of the Pennsylvania Municipalities Planning Code.*fn1 Appellant alleged therein that the ordinance totally excludes the leasing of trailers, trucks and vans as a permissible business activity within the Township. The Board of Supervisors rejected the curative amendment request, finding inter alia, that appellant had failed to establish a total exclusion.

No. 1433 C.D. 1983

We will first address Appellant's request for accessory use status or, in the alternative, a special exception. Where, as here, the court of common pleas did not take additional evidence, our scope of review is to determine whether the ZHB abused its discretion or committed an error of law. Champaine v. Zoning Hearing Board of East Bradford Township, 30 Pa. Commonwealth Ct. 544, 374 A.2d 752 (1977).

With regard to Appellant's request for accessory use status, the ZHB correctly noted that Section 2100(P) of the Township ordinance expressly prohibits the rental of vehicles as a part of a gasoline service station business. Section 1101(Q) also permits accessory uses in the "C" Commercial District which are "on the same lot with and customarily incidental to any of the foregoing permitted uses." Appellant introduced various statistical evidence in an attempt to demonstrate that the rental of trucks, vans and trailers is customarily incidental to the primary use of a gasoline service station. We consider this evidence to be irrelevant, however, since even if Appellant could show that his proposed leasing operation qualifies under the general accessory use ...


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