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APPEAL FROM STOP (02/08/89)

decided: February 8, 1989.

IN RE: APPEAL FROM STOP, CEASE AND DESIST ORDER, APPLICATION FOR VARIANCE AND CONSTITUTIONAL CHALLANGE OF U.S. ALUMINUM CORPORATION OF PENNSYLVANIA. U.S. ALUMINUM CORPORATION OF PENNSYLVANIA, APPELLANT. IN RE: APPEAL OF STOP, CEASE AND DESIST ORDER, APPLICATION FOR VARIANCE AND CONSTITUTIONAL CHALLENGE OF U.S. ALUMINUM CORPORATION OF PENNSYLVANIA. BOROUGH OF MARIETTA, APPELLANT


Appeals from the Orders of the Court of Common Pleas of Lancaster County, in the case In Re: Appeal from Stop, Cease and Desist Order, Application for Variance and Constitutional Challenge of U.S. Aluminum Corporation of Pennsylvania (No. 11), No. 2058-1985, dated May 21, 1986 and January 18, 1988.

COUNSEL

James R. McManus, with him, David E. Greer, Herr, Greer & Hoberg, for appellant/appellee, U.S. Aluminum Corporation of Pennsylvania.

Michael J. Hohenadel, Nikolaus, Hohenadel, Chesters & Umbenhauer, for appellant/appellee, Borough of Marietta.

William C. Crosswell, Morgan, Hallgren, Crosswell & Kane, P.C., for appellant/appellee, Marietta Borough Zoning Hearing Board.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 123 Pa. Commw. Page 378]

U.S. Aluminum Corp. of Pennsylvania (Appellant) has appealed from an order of the Court of Common Pleas of Lancaster County which affirmed a decision of the Zoning Hearing Board (Board) of Marietta Borough (Borough) subjecting Appellant's use of an aluminum shredder to limitations on the hours of operation. The Borough has cross-appealed to preserve its right to object to the trial court's rejection of its res judicata argument.*fn1

The procedural history of this matter is lengthy. Appellant operates an aluminum recycling business in the Borough.*fn2 In 1971, it applied to the Borough for a special

[ 123 Pa. Commw. Page 379]

    exception from setback requirements to install a shredder. The Board granted the special exception but limited the hours of operation of the shredder to between 8:00 a.m. and 4:00 p.m. Monday through Friday. No appeal was taken from this decision. In 1975 and 1978, Appellant submitted applications to the Board to increase the hours of operation. Both were denied and Appellant did not appeal from either decision. In 1984, the Borough Zoning Officer issued a cease and desist order because of citizen complaints that Appellant was operating the shredder beyond the hours allowed.

Appellant appealed this decision to the Board, 1) seeking to have the hours of operation modified, 2) seeking a variance from the limitation on the hours of operation and 3) challenging the validity of applicable sections of the zoning ordinance on the grounds that they did not contain sufficient standards for the imposition of conditions upon operations. Following an adverse decision, Appellant appealed to common pleas court which remanded. The court found that the original special exception related to setbacks from a street, West Hazel Avenue, which the Borough had since vacated, resulting in a substantial change of conditions, allowing the Board to reconsider an application which was previously before it under other circumstances. However, the court also found that Appellant would need a special exception, under the terms of the zoning ordinance, to operate its

[ 123 Pa. Commw. Page 380]

    shredder and directed the Board to consider both Appellant's application therefor and its constitutional challenge. On remand, the Board dismissed the constitutional challenge and granted the special exception, subject to the same conditions originally imposed in 1971. The common ...


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