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NESHANNOCK TOWNSHIP v. GARY MUSGUIRE ET AL. (12/03/84)

decided: December 3, 1984.

NESHANNOCK TOWNSHIP, LAWRENCE COUNTY, PENNSYLVANIA
v.
GARY MUSGUIRE ET AL., GARY MUSGUIRE, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lawrence County in the case of Neshannock Township, Lawrence County, Pennsylvania v. Gary Musguire and Donald Nelson, No. 21 of 1982.

COUNSEL

Dina G. McIntyre, McIntyre & McIntyre, for appellant.

Dominick Motto, Chambers, Nicolls, Balph, Paul & Motto, for appellee.

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

Author: Craig

[ 86 Pa. Commw. Page 247]

Landowner Gary Musguire appeals an order of the Court of Common Pleas of Lawrence County, sitting en banc, which dismissed his exceptions to the decree nisi of Judge Caiazza, as chancellor, enjoining Musguire and Donald Nelson from operating a motor vehicle racing facility on property owned by them in Neshannock Township.

We must determine whether a commercial racetrack constitutes a "recreation ground," public or private, as permitted in the R-3 Residential Limited Use district under Article V of the Neshannock Township zoning ordinance.

The property involved here is a 45.77 acre tract of land in a triangular shape bordered on the southwest and northwest sides by the Shenango River, and on the east side by railroad tracks. While this landowner has owned the property, its zoning classification has been R-3, although formerly the property, like all surrounding land, had an industrial use classification.

The landowners have used the property, now known as Harbor Woods, primarily as a motocross track, with some drag races. The races are open to the public, solicited by the owners through advertisements. Spectators and participants must pay entrance fees. A starting gate, control tower and concession

[ 86 Pa. Commw. Page 248]

    stand are located on the property in connection with its use as a race track. The landowners have also held a music concert and other public entertainment events at Harbor Woods, subject to admission charges.

Neshannock Township filed suit in equity primarily to enjoin the landowners from making a use of their property which is not permitted in an R-3 district under the local zoning ordinance. Section 500 of the ordinance declares that the purpose of designating an area as R-3 Residential Limited Use is:

(1) To preserve natural amenities; (2) to minimize erosion; (3) to protect the flood plain; (4) to preserve open space not readily adaptable to economic development; (5) to preserve surface drainage channels for unimpeded removal of ...


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