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LOWER SOUTHAMPTON TOWNSHIP BOARD SUPERVISORS AND TONI AND ARIS PASLES v. HERBERT SCHURR (02/23/88)

decided: February 23, 1988.

LOWER SOUTHAMPTON TOWNSHIP BOARD OF SUPERVISORS AND TONI AND ARIS PASLES, APPELLANTS
v.
HERBERT SCHURR, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County, in the case of Herbert Schurr v. Lower Southampton Township Board of Supervisors, No. 81-05159-12-5.

COUNSEL

Donald A. Semisch, Semisch and Semisch, with him, Daniel J. Lawler, Lawler and Gonzales, for appellant.

E. Dillwyn Darlington, for appellee.

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

Author: Craig

[ 113 Pa. Commw. Page 631]

The Lower Southampton Township Board of Supervisors appeals an order issued by Judge George T. Kelton for a panel of the Court of Common Pleas of Bucks County, reversing a decision of the township's zoning hearing board and granting Herbert Schurr's application to operate an auto salvage yard.

This appeal presents an issue of first impression: What is a trial court's scope of review of a zoning hearing board when, after the courts have concluded that a zoning ordinance is exclusionary, the trial court, upon remand to it under section 1011(2) of the Pennsylvania Municipalities Planning Code,*fn1 has further referred the matter to the zoning hearing board to determine site suitability?

[ 113 Pa. Commw. Page 632]

Because we conclude that section 1011(2) of the MPC gives the trial court broad discretion in these matters, the trial court is not bound by the findings of the zoning hearing board and may review the issue of site suitability de novo. Moreover, because we conclude that the trial court did not abuse its discretion in conducting its de novo review of the evidence regarding site suitability, we affirm.

The antecedent history of the case has been settled. Herbert Schurr proposed to operate an automobile salvage business on 5.5 acres of an approximately 19-acre tract in Lower Southampton Township. The township refused to issue a zoning permit, and on July 24, 1980, Schurr's petition challenged the validity of the existing ordinance as exclusionary, and requested a curative amendment pursuant to section 609.1 and 1004(1)(b) of the MPC.*fn2 After hearings, the township board of supervisors denied Schurr's application.

Schurr appealed to the Court of Common Pleas of Bucks County which held the zoning ordinance to be exclusionary. The township appealed to this court, and we affirmed in Lower Southampton Township Board of Supervisors v. Schurr, 72 Pa. Commonwealth Ct. 322, 456 A.2d 702 (1983). This court modified the trial court's order by stating "that locational site suitability be considered by the appropriate zoning authorities prior to the issuance of a zoning permit. We emphasize that this site review may not be used in a retributory manner to frustrate Appellee in receiving relief from what has already been determined to be an exclusionary ordinance." Id. 72 Pa. Commonwealth Ct. at 329-30, 456 A.2d at 706. (Emphasis in original.)

Pursuant to this court's opinion and order, Judge Kelton referred the matter to the ...


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