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LOWER ALLEN CITIZENS ACTION GROUP v. LOWER ALLEN TOWNSHIP ZONING HEARING BOARD AND HEMPT BROS. (11/21/85)

decided: November 21, 1985.

LOWER ALLEN CITIZENS ACTION GROUP, INC., APPELLANT
v.
LOWER ALLEN TOWNSHIP ZONING HEARING BOARD AND HEMPT BROS., INC., AND LOWER ALLEN TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of Lower Allen Citizens Action Group, Inc. v. Lower Allen Township Zoning Hearing Board and Hempt Bros., Inc., and Lower Allen Township, No. 2958 Civil, 1984.

COUNSEL

William H. Andring, for appellant.

Robert E. Yetter, Metzger, Wickersham, Knauss & Erb, for appellee, Lower Allen Township.

Horace A. Johnson, Myers, Johnson, Duffie & Weidner, for appellee, Hempt Bros., Inc.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 93 Pa. Commw. Page 98]

Lower Allen Township Citizens Action Group, Inc., a domestic non-profit corporation (Appellant), appeals here an order of the Court of Common Pleas of Cumberland County. That order dismissed its appeal from an adverse decision of the Lower Allen Township Zoning Hearing Board of its challenge to the proposed expansion of quarrying operations conducted by Hempt Brothers, Inc. (Hempt). Hempt has filed a motion to quash this appeal for lack of standing. We

[ 93 Pa. Commw. Page 99]

    shall deny the motion to quash and affirm the order of the common pleas court.

The factual background of this case is somewhat complex; however, the following facts are pertinent to our disposition. Hempt has operated a limestone quarry in Lower Allen Township since 1925. It had acquired the fifty-four acre parcel in question here in 1934 which parcel adjoins the present quarry and, prior to the amendments to the township zoning ordinance (Ordinance) challenged here, was zoned partly R-1 Residential and I-Industrial. While Hempt operated its quarry as a prior non-conforming use, quarrying is a permitted land use in the township by special exception.

The Commissioners of Lower Allen Township (Township) enacted six ordinances between August 15, 1983 and November 14, 1983 which amended the Ordinance. Those amendments provided for the creation of a mineral recovery (MR) district in the township; established regulations for operations in a MR district; rezoned the parcel upon which Hempt's present quarry is located from I-Industrial to MR; rezoned an additional one hundred fifty foot strip of land owned by Hempt from I-Industrial to R-1 Residential; rezoned the remaining 52.6 acres of Hempt's 54 acre tract from I-Industrial and R-1 Residential to MR; and prohibited surface mining as a use in any district other than MR. In November 1983, Hempt filed a request with the Township for a preliminary opinion, pursuant to Section 1005(b) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11005(b), regarding its proposed quarry on the remaining 52.6 acres of the 1934 tract and its compliance with the Ordinance. On December 7, 1983, the Township issued a preliminary opinion which found Hempt's proposed quarry use in compliance with the Ordinance.

[ 93 Pa. Commw. Page 100]

On January 16, 1984, John Shuey, Gilbert Wilson, James Smith, Jr., and John Yeigh, both in their individual capacities and as trustees ad litem of the Lower Allen Citizens Action Group, an unincorporated association (Association), hereinafter referred to collectively as "Challengers," filed with the Board a challenge under Section 1005(b) of the Code to the permitted expansion of Hempt's quarry operation. The Challengers argued that the 1983 amendments to the Ordinance constituted prohibited special legislation and spot zoning and were not reasonably related to the Township's authority to coordinate development and protect the character, health and welfare of the community. They also contended that Hempt's proposed expansion of its quarry was detrimental to the health, welfare and morals of the community. The Board held thirteen hearings comprising approximately forty hours of testimony and compiled a record totaling 1,250 pages and included hundreds of exhibits. On September 6, 1984, the Board rendered a decision which included eighty-two separate findings of fact and dismissed the challenge. On October 1, 1984, the Association filed Articles of Incorporation with the Department of State and was issued a Certification of Incorporation as the Lower Allen Citizens Action Group, Inc. On October 9, 1984, this corporation (Appellant here) filed a notice of appeal from the Board's decision with the common pleas court. None of the original individual challengers joined in the corporation's appeal. Both Hempt and the Township intervened in the appeal in support of the Board's decision. The Township moved to quash the appeal on the basis that the corporation had no standing since it, as a separate entity, was not a party to the proceedings before the Board. Appellant also requested that the common pleas court allow it to present additional evidence. The common pleas court denied both

[ 93 Pa. Commw. Page 101]

    the motion to quash and the request to take additional evidence and, on the basis of the record made before the Board, affirmed the Board's decision in an extensive and well-written opinion.

In this appeal, Appellant contends that (1) essential findings of the Board are unsupported by substantial evidence; (2) that the common pleas court erred as a matter of law when it denied Appellant the opportunity to present additional evidence; (3) the Township's enactment of the 1983 amendments to the Ordinance constitutes an arbitrary and capricious abuse of discretion and violated Section 1011 of the Code, 53 P.S. § 11011; and (4) the Township's enactment of the 1983 amendments to the Ordinance constituted prohibited special legislation or spot zoning. Additionally, Hempt has moved to quash this appeal contending that the Appellant lacks standing. We shall first dispose of the motion to quash and then address the Appellant's contentions seriatim. We are aware, however, that where the common pleas court has taken no additional evidence, as is the case here, our scope of review is limited to determining whether the Board's ...


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