Appeal from the Order of the Court of Common Pleas of Berks County, in the case of Neil R. Toms and Nancy J. Toms v. The Board of Supervisors of Washington Township, No. 89 November 1986, AD.
Paul A. Prince, Prince and Prince, P.C., for appellant.
Thomas G. Parisi, with him, Richard L. Orwig, O'Pake, Malsnee & Orwig, P.C., for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 123 Pa. Commw. Page 166]
Neil and Nancy Toms challenge the Washington Township Zoning Ordinance as exclusionary, alleging that it failed to make any provision for a trash transfer station. The Washington Township Board of Supervisors rejected the Toms' challenge and proposed curative amendment, concluding that the existing zoning ordinance permitted the use in question. The court of common pleas affirmed without taking additional evidence.*fn1 We reverse and remand.
The undisputed facts are reflected by the board's findings. The trial court succinctly summarized them as follows:
[ 123 Pa. Commw. Page 167]
In November of 1985, appellants opened a 'refuse transfer station' on their property in the area immediately adjacent to the residence. The refuse transfer station consisted of a 50 foot long, 9 foot high retaining wall. In front of, and below the top of the wall, appellants placed one, and sometimes two industrial trash bins. Trash trucks would pick up trash in the early morning of each business day, transport the trash to the transfer station and empty the collected trash into the industrial trash bin or bins. On or near the same day as the trash was dumped in the bins, appellants caused the filled bins, with their contents of trash, to be hauled away and an empty bin or bins to be substituted for them. The appellants had no zoning or other permit authorizing them to construct and operate the transfer station. Consequently, the Washington Township Zoning Officer advised them that they were operating the transfer station in violation of the Washington Township Zoning Ordinance. They then sought a curative amendment to the township zoning ordinance permitting such a 'trash transfer station' in the 'R-1', Rural Conservation District. The Board of Supervisors refused to enact it.
On appeal, the Toms contend that the township's zoning ordinance is exclusionary because trash transfer stations, clearly prohibited in all non-industrial districts, are also excluded from the industrial district by section 901, which reads:
Section 901. Use Regulations ;
3. The following uses shall not be ...