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D.C. GUELICH EXPLOSIVES COMPANY v. ZONING HEARING BOARD MIFFLIN TOWNSHIP (04/10/87)

decided: April 10, 1987.

D.C. GUELICH EXPLOSIVES COMPANY
v.
THE ZONING HEARING BOARD OF MIFFLIN TOWNSHIP, COLUMBIA COUNTY, PENNSYLVANIA AND THE SUPERVISORS OF MIFFLIN TOWNSHIP, COLUMBIA COUNTY, PENNSYLVANIA. THE SUPERVISORS OF MIFFLIN TOWNSHIP, COLUMBIA COUNTY, PENNSYLVANIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of The 26th Judicial District of the Commonwealth of Pennsylvania, Columbia County Branch, in case of D.C. Guelich Explosives Company v. The Zoning Hearing Board of Mifflin Township, Columbia County, Pennsylvania, and The Supervisors of Mifflin Township, Columbia County, Pennsylvania, No. 364 of 1984.

COUNSEL

Franklin E. Kepner, Jr., for appellant.

Frank C. Baker, for appellee.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 105 Pa. Commw. Page 233]

The Supervisors of Mifflin Township (appellant) appeal from an order of the Court of Common Pleas of Columbia County which held that the Mifflin Township Zoning Ordinance (Ordinance) is unconstitutional, and ordered that appellee, D.C. Guelich Explosives Company, be permitted to construct its proposed facility. We reverse.

Appellee leases approximately 350 acres of land in Mifflin Township (Township). The land is presently used for Christmas tree farming. Appellee seeks to use a portion of the property as a facility for the storage and distribution of explosives. The facility would consist of several magazines for the storage of dynamite, blasting caps, and blasting agents. Additionally, the facility would include a silo for the storage of ammonium nitrate.

[ 105 Pa. Commw. Page 234]

An existing structure on the premises would be used as an office and for storage of vehicles.

The land in question is located partially in a Residential Conservation District (R.C. District), and partially in a Residential Agricultural District (R.A. District). Appellee proposes that the magazines would be located in the R.A. District, and the silo, office, and storage space would be in the R.C. District. The entire facility would be regulated by the Federal Bureau of Alcohol, Tobacco and Firearms, the Pennsylvania Department of Environmental Resources, the Pennsylvania Department of Transportation, and the U.S. Department of Transportation.

Appellee submitted an application to appellant for a variance and/or a special exception. Simultaneously, appellee challenged the validity of the Ordinance. The Zoning Hearing Board of Mifflin Township (Board) held a hearing and rendered a decision denying the request for a variance and/or special exception, and dismissing the challenge to the Ordinance.

Following a de novo hearing, the trial court concluded that the proposed facility does not fall within the permitted uses in the Industrial Districts. The trial court also concluded that the proposed use does not fall within the permitted special exceptions in the R.C. and R.A. Districts. Further, the trial court held that because state and federal regulations effectively exclude the proposed facility from the Township's Industrial Districts, the Ordinance is exclusionary and unconstitutional. Thus, the trial court ordered that appellee be permitted to construct the proposed facility at the proposed site.

Appellant contends that the trial court erred in holding that the Ordinance is exclusionary and unconstitutional. Where, as here, the trial court took additional ...


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