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WHITPAIN TOWNSHIP BOARD SUPERVISORS v. WHITPAIN TOWNSHIP ZONING HEARING BOARD/WINGS FIELD ASSOCIATES (12/02/88)

decided: December 2, 1988.

WHITPAIN TOWNSHIP BOARD OF SUPERVISORS
v.
WHITPAIN TOWNSHIP ZONING HEARING BOARD/WINGS FIELD ASSOCIATES, A PENNSYLVANIA LIMITED PARTNERSHIP V. THE WHITPAIN TOWNSHIP ZONING HEARING BOARD AND WHITPAIN TOWNSHIP BOARD OF SUPERVISORS. WINGS FIELD ASSOCIATES, A PENNSYLVANIA LIMITED PARTNERSHIP, APPELLANT. WINGS FIELD ASSOCIATES, A PENNSYLVANIA LIMITED PARTNERSHIP V. THE WHITPAIN TOWNSHIP ZONING HEARING BOARD AND WHITPAIN TOWNSHIP BOARD OF SUPERVISORS. WHITPAIN TOWNSHIP BOARD OF SUPERVISORS, APPELLANT. WHITPAIN TOWNSHIP BOARD OF SUPERVISORS, APPELLANT V. WHITPAIN TOWNSHIP ZONING HEARING BOARD, APPELLEE



Appeals from the Order of the Court of Common Pleas of Montgomery County in the cases of Whitpain Township Board of Supervisors v. Whitpain Township Zoning Hearing Board, No. 86-11826; and Wings Field Associates, A Pennsylvania Limited Partnership v. The Whitpain Township Zoning Hearing Board -- Whitpain Township Board of Supervisors, Intervenor, No. 86-11945.

COUNSEL

Robert S. Ryan, Drinker, Biddle & Reath, with him, Frank W. Jenkins and Stephen P. Imms, Jr., Jenkins, Tarquini & Jenkins, for appellant/appellee, Wings Field Associates.

J. Peirce Anderson, Township Solicitor, for appellee/appellant, Whitpain Township Board of Supervisors.

Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge MacPhail. Concurring Opinion by Judge Craig.

Author: Doyle

These three consolidated appeals all arise out of the attempts of Wings Field Associates (Wings) to modernize and expand its airport, Wings Field, located in Whitpain Township (Township), in Montgomery County. Wings Field was originally founded in 1929 as a private club for airplane owners and pilots, and was located upon a 134.5 acre tract. By the 1940's Wings Field had developed to include a commercial air taxi and charter service, a flight school, aircraft maintenance facilities, various aviation related businesses and the Philadelphia Aviation Country Club (Club). As of 1950, Wings Field's facilities consisted of four hangars, a barn maintenance hangar, the club building, a small cottage and a 2600 foot runway. The runway ran, and still runs, from southwest to northeast. In 1950, the Township zoned Wings Field and the property around it R-1 residential, making the airport a pre-existing non-conforming use.*fn1

[ 121 Pa. Commw. Page 421]

Wings Field was further expanded in 1955 and 1967, when the Whitpain Township Zoning Hearing Board (Board) allowed the airport's owner to construct a hangar on each occasion. In 1972, Wings Field was purchased by Wings' immediate predecessor-in-interest, Blue Bell Associates (Blue Bell), which began acquiring property contiguous to the airport. Among its purchases Blue Bell acquired a 21.4 acre tract of land which abutted the northeastern portion of Wings Field.

In January 1977, Pennsylvania Aviation, Inc. (Aviation) instituted an airline shuttle service, known as Wings Airways (Airways). Aviation's presence at Wings Field necessitated further expansion of the airport. In 1977, Blue Bell constructed a hangar with twelve aircraft spaces, and in 1981 erected a terminal building housing passenger, administrative and other airport facilities. Aviation's activities have increased since 1977 from 5,157 operations and 13,468 passengers to 16,500 operations and 75,000 passengers by 1984, and constituted the bulk of activities at Wings Field. By 1984 Wings Airways had twenty-six scheduled flights between Wings Field and Philadelphia International Airport.*fn2

Wings purchased the airport from Blue Bell in 1983. By 1984, the airport facilities consisted of the runway, seven hangars with space for fifty-two airplanes, tiedown areas for forty-five additional aircraft, four maintenance and fifteen transient tiedowns, a barn maintenance hangar, an administration building, a terminal building, the Club's facilities and miscellaneous

[ 121 Pa. Commw. Page 422]

    other structures and uses, including a cottage and 409 parking spaces. Further, the facilities covered 209.9 acres of which 117.6 acres were open space. The aircraft using Wings Field in 1984 were those of the general aviation class, i.e., single and multi-engine aircraft under 12,500 pounds.

After reviewing operations at Wings Field, Wings decided that the airport should be further expanded. This decision was based on the following projections by Wings: that Aviation's activities would increase to 17,500 operations and 85,000 passengers by 1989; that general aviation use of Wings Field would expand from 26,000 operations in 1984 to 30,500 operations in 1989; and, that air taxi and charter flights would rise from 2,000 operations in 1984 to 2,500 operations in 1989.

Consequently, in late 1984, Wings filed an application with the Board requesting that it be permitted: (a) to construct a new 4,800 square foot passenger terminal to house the Wings Airways operations and a "buffeteria" to serve food to passengers and airport employees; (b) to construct a 318 space parking lot to be used by Aviation in addition to a 146 space long-term parking lot; (c) to demolish existing hangars 3, 4, and 6, and replace them with eight new hangars and a maintenance hangar (the new hangars would increase the number of hangar spaces from 52 to 79); (d) to add additional tiedown areas, increasing the number of tiedowns from sixty-four to eighty-three; (e) to construct a three-story, 49,500 square foot, "spec" office/hangar to be totally tenant-occupied with hangar space for five tenantowned aircraft and 190 parking spaces in connection with this building; (f) to add parking spaces including, inter alia, thirty-two Club parking spaces, sixteen visitor parking spaces, eleven employee parking spaces adjacent to the maintenance hangar, and forty-eight employer spaces in other areas; (g) to convert the existing

[ 121 Pa. Commw. Page 423]

    passenger terminal into a flight school and pilot's lounge; (h) to convert the existing maintenance hangar into a storage hangar; and (i) to demolish the cottage.

Wings also filed a second application, which would allow it to lengthen the existing runway by 1200 feet, from 2600 feet to 3800 feet at its northeastern end, into the property Blue Bell had acquired in 1974. The runway could not be expanded at its southeastern end because of its extremely close proximity to a township road and because of restrictive covenants entered into between previous owners of the airport.

After over a year of hearings, the Board granted Wings' first application in all respects, except for the "spec" office/hangar. As to the second application, the Board found that because of the statutory "clear zone"*fn3 which mandates that certain portions of Wings' property at the end of the runway not be used for residential purposes, a hardship was created upon the property. The Board further found that a runway extension of 600 feet would not be detrimental to the public interest.

Both Wings and the Township appealed to the Court of Common Pleas of Montgomery County. The common pleas court, without taking additional evidence, affirmed the Board's order, except that it modified the Board's order by allowing Wings to expand the runway by 1,000 feet, rather than 600 feet. This 1,000 feet represents the full length of the "clear zone." Both parties have appealed to this Court.*fn4

[ 121 Pa. Commw. Page 424]

The Township's first contention is that the addition of Wings Airways commuter services in 1977 constituted the addition of an illegal use.*fn5 We disagree. Generally, a landowner cannot change or establish a use different in nature from what was contemplated as the nonconforming use. Mignatti Appeal, 403 Pa. 144, 168 A.2d 567 (1961). In order to decide whether an application involves a new use or an existing one, "[w]e must look to the applicable zoning ordinance's structure as our chief guide with respect to how uses are categorized for the particular municipality." Gustin v. Zoning Hearing Board of Sayre Borough, 55 Pa. Commonwealth Ct. 410, 412, 423 A.2d 1085, 1086 (1980). In this case, however, the Township has neither differentiated between types of airports nor even zoned for an airport. Consequently, we must determine whether the use of the airport by Wings Airways is so different in magnitude or kind as to amount to a change in use. Mignatti.

We agree with the Board that Wings Field in 1950 was not a "country club for pilots" as the Township contends, but rather a local full-service airport with a number of aviation activities and aviation related ...


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