Appeals from the Orders of the Court of Common Pleas of Chester County in the cases of Irwin J. Stein v. Easttown Township Board of Supervisors, No. 85-01832; Irwin J. Stein v. Easttown Township Zoning Hearing Board, No. 85-01127.
John C. Snyder, with him, Sean A. O'Neill, Lentz, Cantor, Kilgore & Massey, Ltd., for appellant.
John S. Halsted, Gawthrop, Greenwood & Halsted, for appellee.
Judges Craig, Doyle and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
[ 110 Pa. Commw. Page 295]
In this consolidated appeal, Irwin J. Stein (Appellant) appeals from two orders of the Court of Common Pleas of Chester County, one affirming the denial by the Board of Supervisors of Easttown Township (Board) of Appellant's preliminary land development plan and application, and the other affirming a decision of the Easttown Township Zoning Hearing Board (ZHB) denying Appellant's application for a special exception. We reverse both orders.
Appellant is the owner of .585-acre tract located in Easttown Township in the "B-Business District." On this tract, Appellant sought to construct a nineteen-unit apartment complex, including an adjacent parking lot. It is uncontested that the apartment development is a permitted use in the "B-Business District." Accordingly, in 1981, Appellant submitted to the Board a preliminary land development plan and application.
In connection with the proposed development, Appellant also applied to the Pennsylvania Department of Environmental Resources (DER) for a permit for the enclosure and piping of a stream that traverses the front portion of the property. Appellant ultimately sought to
[ 110 Pa. Commw. Page 296]
cover the piped stream with fill and place the parking lot on top of it.
Additionally, in October 1984, Appellant applied to the ZHB, requesting that it either grant him a special exception under Section 1504 of the Easttown Township Zoning Ordinance for the parking lot and concomitant piping and enclosure of the stream or, alternatively, rule that the proposed parking lot and stream enclosure constituted a permitted use subject only to DER approval.
On January 24, 1985, the ZHB ruled that the proposed parking lot and stream enclosure was not a permitted use, but required a special exception,*fn1 and it then denied Appellant's request for the special exception. While Appellant's appeal of this decision was pending before the common pleas court, the Board voted to deny Appellant's application for preliminary land development approval. Appellant appealed this decision as well to the common pleas court, which consolidated the appeals. Without taking any additional evidence, the trial court affirmed both the decision of the ZHB and the decision of the Board, and Appellant appealed to this Court.*fn2
[ 110 Pa. Commw. Page 297]
dams, obstructions, and other structures 'along, across or projecting into all streams and bodies of water,' as well as changes in the course current, cross-sections or location of any stream in the Commonwealth of Pennsylvania. Submission of plans and calculations in accordance with Department of Environmental Resources criteria must be made to D.E.R. and a permit obtained whenever an alteration or obstruction of a stream or body of water is contemplated. . . .
Easttown Township, Pa., Zoning Ordinance § 1504(1) (1981) (emphasis added).
Appellant first argues that the enclosure of the stream in order to place a parking lot atop, is a permitted use under Section 1504(1). A plain reading of that Section, however, compels us to disagree. While permeable parking lots are permitted uses in the flood hazard district, see § 1504(1)(d), in order to accomplish this, Appellant proposes to first pipe the stream and cover it with fill. Section 1504 expressly and clearly states that uses requiring fill are not permitted uses. When words of a zoning ordinance are clear and unambiguous, the letter of the ordinance is not to be disregarded. Lucia v. Zoning Hearing Board of Upper St. Clair Township, 63 Pa. Commonwealth Ct. 272, 437 A.2d ...