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FLOYD G. HERSH v. ZONING HEARING BOARD MARLBOROUGH TOWNSHIP (06/07/85)

decided: June 7, 1985.

FLOYD G. HERSH, APPELLANT
v.
ZONING HEARING BOARD OF MARLBOROUGH TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Floyd G. Hersh v. Zoning Hearing Board of Marlborough Township, No. 83-02977.

COUNSEL

Marc D. Jonas, for appellant.

Kent H. Albright, McGrory, Wentz, Fernandez & Albright, for appellee.

Judges MacPhail and Barry and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 90 Pa. Commw. Page 17]

Floyd G. Hersh (Appellant) has appealed from an order of the Court of Common Pleas of Montgomery County affirming a decision of the Zoning Hearing Board of Marlborough Township (Board) denying Appellant's application for a variance or validity variance from the requirements of the Marlborough Township Zoning Ordinance of 1970 (Ordinance).

Appellant is the owner of a 23.649 acre lot in Marlborough Township (Township) on which is located a 2 to 2 1/2 acre abandoned stone quarry. The property is located in an RA-1 Residential Agricultural Zoning District, with a small portion of the property located within an R-30 Residential District. Neither District permits quarrying. Appellant's application to the Board (1) sought a variance or a validity variance to allow him to use the entire 23.649 acres for mining and quarrying, including the installation of a portable stone crusher and (2) challenged the validity of the Ordinance based upon the failure of the Ordinance to provide for mining and quarrying as a permitted use. The Board denied Appellant's requests. Appellant appealed to the trial court which, without taking additional evidence, dismissed Appellant's appeal and thereby upheld the decision of the Board. The instant appeal followed.

Where the trial court took no additional evidence, our scope of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commonwealth Ct. 296, 427 A.2d 776 (1981). Appellant presents five issues for our review: (1) whether the Board abused its discretion, (2) whether the Ordinance is unconstitutionally exclusionary, (3) whether the Ordinance is de facto exclusionary, (4) whether the Board erred in not

[ 90 Pa. Commw. Page 18]

    granting the requested variance, and (5) whether Appellant is entitled to operate the quarry as a change of an existing nonconforming use. We shall address these issues seriatim.

Appellant first alleges that the Board abused its discretion in not making findings based upon the evidence he and his experts presented. The Appellant argues that the testimony of his neighbors and other landowners in the Township (protestants) had no probative value. However, the Board was not obliged to accept Appellant's expert witnesses' testimony over that of the protestants. The Board, as fact finder, has the power to reject even uncontradicted testimony if the Board finds that testimony to be lacking in credibility. George v. Zoning Hearing Board of Upper Moreland Township, 39 Pa. Commonwealth Ct. 472, 396 A.2d 478 (1978). In the instant case, the Board did not find Appellant's expert witnesses' testimony credible. The Board did find credible the evidence of the protestants who testified at length and with considerable specificity. This evidence, in our view, amply supports the Board's decision. See Township of Abington v. Rocks Associates, Inc., 11 Pa. Commonwealth Ct. 95, 312 A.2d 98 (1973).

Appellant next contends that the Ordinance is unconstitutionally exclusionary for its failure to provide for quarries as a permitted use. A zoning ordinance is presumed valid and constitutional, and an applicant alleging its unconstitutionality has a heavy burden to prove its invalidity. G.M.P. Land Co. v. Hegins Township Board of Supervisors, 72 Pa. Commonwealth Ct. 591, 457 A.2d 989 (1983). The applicant must demonstrate that the ordinance, on its face, completely bans a particular use. Benham ...


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