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MINE SAFETY APPLIANCES COMPANY v. MARSHALL TOWNSHIP BOARD SUPERVISORS. ALFRED M. TARQUINIO (12/14/88)

decided: December 14, 1988.

MINE SAFETY APPLIANCES COMPANY
v.
MARSHALL TOWNSHIP BOARD OF SUPERVISORS. ALFRED M. TARQUINIO, ALEXANDER MCALILEY, BURTON C. DUERRING V. MARSHALL TOWNSHIP ZONING HEARING BOARD. ALFRED M. TARQUINIO, ALEXANDER MCALILEY AND BURTON C. DUERRING, APPELLANTS. MARSHALL TOWNSHIP BOARD OF SUPERVISORS, APPELLANT V. MINE SAFETY APPLIANCES COMPANY, APPELLEE



Appeals from the Order of the Court of Common Pleas of Allegheny County in the case of Marshall Township Board of Supervisors v. Zoning Hearing Board of Marshall Township, In Re: Mine Safety Appliances Company, No. SA 1351 of 1986 (Sur. No. SA 1867 of 1985).

COUNSEL

Arthur J. Leonard, with him, Thomas V. Gebler, Jr., Robb, Leonard & Mulvihill, for appellant, Marshall Township Board of Supervisors.

Burton C. Duerring, for appellants, Alfred M. Tarquinio, et al.

Richard T. Wentley, with him, Charles L. Albright, Jr., Reed, Smith, Shaw & McClay, for appellee, Mine Safety Appliances Company.

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

Author: Craig

[ 122 Pa. Commw. Page 123]

The issue is whether a private driveway in a district zoned rural residential may be used to serve an industrial use in a district of an adjacent municipality where the industrial use is allowed and exists. On the basis of Atria, Inc. v. Board of Adjustment of Mount Lebanon Township, 438 Pa. 317, 264 A.2d 609 (1970), we conclude that private road access to an industrial use facility is not allowed over a lot in a residential district.

This is an appeal from a decision of the Allegheny County Court of Common Pleas which, relying on Strasburg Associates I v. West Bradford Township, 77 Pa. Commonwealth Ct. 166, 465 A.2d 124 (1983), affirmed a decision of the Marshall Township Zoning

[ 122 Pa. Commw. Page 124]

Hearing Board which had approved a proposal of Mine Safety Appliances Company (MSA) to construct a private roadway across its property located in a district zoned rural residential by Marshall Township.

MSA is the owner of two contiguous parcels of land, one located in the Marshall Township residential district, and the second in Cranberry Township, where MSA operates a research and instrument assembly facility allowable under Cranberry's zoning. MSA desires to construct a private roadway, as a second means of access to its facility, through its Marshall Township property. MSA proposes the driveway only for use by its employees during morning and afternoon commuting hours.

The Pennsylvania Department of Transportation approved the location of the private roadway's entry to the state highway. Afterwards, the Marshall Township Board of Supervisors notified MSA of the necessity to submit a "development plan" to the Marshall Township Planning Commission to obtain approval under the Marshall Township Zoning Ordinance (ordinance). The commission denied approval of the plan which MSA submitted. On October 2, 1985, the township supervisors affirmed the commission's decision.

MSA appealed to the Court of Common Pleas of Allegheny County. MSA took the position that the township supervisors wrongfully required the filing of the development plan, and then improperly denied permission to proceed. The township solicitor filed a motion to quash MSA's appeal for failure to appeal to the zoning hearing board within thirty days of notice of the township supervisors' ...


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