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decided: August 22, 1985.


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of McDonald's Corporation v. Board of Supervisors of Upper Merion Township, No. 83-7552.


Gregory J. Dean, Meneses & Dean, P.C., for appellant.

J. Peirce Anderson, with him, David W. Money-maker, Anderson, Narducci & Sullivan, for appellee.

President Judge Crumlish, Jr., and Judges Rogers, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Rogers. Judge Palladino dissents.

Author: Rogers

[ 91 Pa. Commw. Page 301]

This is the appeal of the Board of Supervisors of Upper Merion Township from an order of the Court of Common Pleas of Montgomery County reversing the supervisors' refusal of a zoning curative amendment application presented by McDonald's Corporation pursuant to Section 609.1 of the Pennsylvania Municipalities Planning Code,*fn1 53 P.S. § 10609.1. The thesis of McDonald's Corporation, presented in its curative amendment application and in testimonial and documentary evidence adduced during the course of hearings conducted by the supervisors in March and April, 1983, is that the township's zoning regulations effect a total prohibition of an accessory use increasingly familiar to patrons of fast food restaurants, which use McDonald's denominates a "drive-thru" service.

As we will shortly explore, the name given to this use is pivotal to the legal analysis of this appeal. Setting aside the matter of names for the moment, the accessory use is a means by which patrons can purchase take-out food without leaving their automobiles and consists physically of a serving counter constructed in an exterior wall of the restaurant; a "menu board" including speakers and microphones for the placement and communication of food orders; and traffic lanes, markings, and signs directing patrons to the menu board and, thence, to the serving window.

[ 91 Pa. Commw. Page 302]

McDonald's finds an express prohibition of this accessory use in the following definition contained in the township's zoning ordinance:

Restaurant -- A place where refreshments or meals are provided to order primarily to be eaten inside a building and secondarily or incidentally eaten on a patio connected thereto or carried away by the buyer. Not a 'drive-in' restaurant for the purpose of this ordinance.

The supervisors rejected McDonald's interpretation on the ground that the "drive-in" restaurant use excluded by the definition is different from the "drive-thru" accessory use proposed by McDonald's. This conclusion is supported by the distinction in language and by the legislative history which indicates that the exclusion of "drive-in" restaurants was enacted in the late 1960's at a time when "drive-in" restaurants were a familiar commercial enterprise involving service of food to patrons in their parked automobiles where the food was then consumed. This use is described by the Pennsylvania Supreme Court in Food Corp. v. Zoning Board of Adjustment, 384 Pa. 288, 121 A.2d 94 (1956).

As further support for their rejection of McDonald's exclusionary interpretation, the supervisors concluded that they were bound by a then recent decision of the township's zoning hearing board, affirmed by the Court of Common Pleas of Montgomery County, in the matter of an application by Gino's Corporation for permission to construct an accessory "drive-thru" facility in another of the township's zoning districts. On the question of whether the definitional exclusion set forth above prohibited an accessory drive-thru, the zoning hearing board had written:

The present application was to permit the construction of a convenience window on the property. The convenience window would facilitate

[ 91 Pa. Commw. Page 303]

    take out service at the restaurant. A patron entering the premises would be directed to the rear of the existing building where a ground sign known as a 'menu board' and a speaker system would be installed. The patrons would make their selections and drive to the side of the building where a window would be installed. At this point, the patron would receive his purchase and pay for the same, never having to leave his car. The applicant indicated that this was 'drive-thru' service as opposed to a 'drive-in' service.

The Board agrees with the applicant that the proposed facility is not in the nature of any traditional 'drive-in' restaurant where the patrons are served in their cars for consumption of the food on the premises.*fn2

Thus, the supervisors concluded that the township's zoning regulations did not exclude throughout the municipality the "drive-thru" accessory use proposed by McDonald's and, therefore, that the prayer of McDonald's curative amendment petition must be refused.

[ 91 Pa. Commw. Page 304]

As we have indicated, the court of common pleas reversed. Inasmuch as no evidence was received by the court below, our duty is to determine whether the findings of the supervisors are supported by substantial evidence and most pertinently whether the governing body erred in a matter of law. Concord Page 304} Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970). We are guided by well-established precepts of ordinance construction including those codified by the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991. Among these is the principle that a zoning ordinance is presumed to be constitutionally valid and that a judicial construction consonant with this presumption is to be preferred. See 1 Pa. C.S. § 1922(3). See also Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975). This principle militates strongly in favor of the board of supervisors' interpretation.

The court of common pleas relied primarily on decisions of this court which it described as holding that ambiguities in the terms of zoning ordinances must be resolved in favor of the property owner, here McDonald's.*fn3 These authorities, strictly speaking, do not so hold. They require zoning regulations to be interpreted in a fashion which will preserve rather than constrict the landowner's use of his land. That is, these authorities require the interpretation least restrictive of land use consistent with the zoning ordinance's terms. Vagnoni v. Bridgeport Borough Council, 420 Pa. 411, 218 A.2d 235 (1966); Fidler v. Zoning Board of Adjustment, 408 Pa. 260, 182 A.2d 692 (1962). In the instant case, this least restrictive interpretation embraced by the supervisors would permit "drive-thru" restaurant uses in the township's other zoning districts, albeit not in the district of McDonald's facility. We note, finally, that the supervisors concluded that "drive-thru" service is, in actuality, simply a species of take out service expressly permitted by the ordinance. We agree with this conclusion.

[ 91 Pa. Commw. Page 305]

For these reasons we conclude that the interpretation of the supervisors was not in error and that the township's zoning ordinance does not expressly exclude the accessory use here proposed by McDonald's.*fn4

On the occasion of this appeal, McDonald's presents the alternative argument that even if "drive-thru" facilities are permitted by the terms of the township's zoning ordinance, such facilities are, as a practical matter, excluded throughout the township. Support for this argument is sought in testimony of a general nature by McDonald's expert land planning witness and by a description in McDonald's written argument submitted to this court of the present development of those districts in which drive-thru facilities are permitted. The difficulty with this attack on the ordinance is that the record does not support, much less compel, the conclusion that placement of "drive-thru" accessory uses in other districts is in fact infeasible.

Specifically, McDonald's contends that its planning witness testified that a fast food restaurant could not successfully operate in the SM -- suburban metropolitan zoning district where, as the supervisors concluded, such restaurants and their "drive-thru" accessories are permitted by the zoning ordinance. At

[ 91 Pa. Commw. Page 306]

    the portion of the record referred to, however, McDonald's land planning witness merely testified that the location of a fast food restaurant within an office campus or industrial site would be "unlikely" due to the absence of attendant high traffic volume. The witness did not testify that fast food restaurants are either unlikely or infeasible as a principal use in a district developed in accordance with the SM use regulations.*fn5 The record does not support the inference

[ 91 Pa. Commw. Page 307]

McDonald's asks us to draw -- that a drive-thru could not subsist in the SM district.

Similarly, McDonald's characterizes as "merit[ing] no comment at all" the feasibility of locating a fast food restaurant in another district -- SM-1 suburban metropolitan district -- because as counsel, not the record, tells us a sanitary sewage treatment facility is located in that district. We are not told, and there is no record evidence of, the size or topography of the SM-1 district, or the extent of other development of the SM-1 district; and there is no explanation of how any of these matters might affect the use of land within that district other than the tract on which the sanitary sewer facility is located.

We are constrained therefore to reverse the order of the court of common pleas.


And Now, this 22nd day of August, 1985, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is reversed.

Judge Palladino dissents.



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