Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Pilot Oil Corporation v. Zoning Hearing Board of West Hanover Township, No. 2744 S. 1983.
C. Kent Price, Hepford, Swartz, Menaker & Morgan, for appellant.
F. R. Martsolf, Connelly, Martsolf & Reid, for appellee.
Judges Williams, Jr., Craig and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr. Dissenting Opinion by Judge Doyle.
This is an appeal by Pilot Oil Corporation (Pilot) from an order of the Court of Common Pleas of Dauphin County which affirmed a zoning board decision denying it a variance.
Pilot holds an option to purchase a tract of land in West Hanover Township (Township) upon which it proposes to construct a convenience store and a self-service fueling station. The tract is located in a Commercial General zoning district. As defined by the West Hanover Township Zoning Ordinance (Ordinance), a Commercial General district imposes a sixty foot front yard requirement on structures although allowing gasoline pumps and service equipment to be located not less than twenty-five feet from the property line. Due to the location of the tract, it is subject to the sixty foot yard requirement on two sides, that side facing Linglestown Road (Pennsylvania Route 39) and that side facing Jonestown Road (old U.S. Route 22).
Pilot requested a variance from the Township to construct a canopy over the gasoline pumps it planned to have located on the side of the tract facing Linglestown Road. The canopy, from its point of junction with the convenience store, would extend thirty-three feet into the front yard leaving twenty-seven feet remaining to the property line. After a hearing, the zoning hearing board denied the variance. Pilot appealed that denial to the Court of Common Pleas of
Dauphin County which affirmed the denial on January 26, 1984.
Both in its appeal before the common pleas court and before this Court, Pilot contends that it is not required to obtain a variance to build its planned canopy and, in the alternative, it had carried its burden of proof before the zoning hearing board so as to be entitled to the variance. Our scope of review in zoning cases where the common pleas court took no additional testimony is limited to a determination of whether the zoning board abused its discretion or committed an error of law.*fn1 Kuhl v. Zoning Hearing Board of Green Township, 52 Pa. Commonwealth Ct. 249, 415 A.2d 954 (1980).
We first address Pilot's contention that it does not require a variance under the Ordinance to build its canopy. Pilot bases its argument on Article XVIII, Section B of the Ordinance*fn2 which permits gasoline pumps and other "service equipment" to be located at least twenty-five feet from the property line. The proposed canopy would cover the gasoline pumps and Pilot maintains it is included as other service equipment subject to the twenty-five foot set-back requirement. The Ordinance does not define the term "service equipment." The zoning board rejected this argument finding the canopy to be a structure subject to ...