Foodarama's Zoning Application , 3 Pa. Commw. 11 ( 1971 )

Dissenting Opinion by

Judge Crumlish, Jr. :

I dissent. I cannot agree with the majority that the parking regulations for this supermarket, which incidently is located in a shopping center district instead of another commercial district, are those governing shopping centers instead of those governing supermarkets. It is clear that shopping center regulations have been drafted with consideration for multiple uses and sharing of facilities normally attendant thereto, and were not intended to assist single uses within the shopping center district to which the reasoning behind the shopping center regulations is clearly inapplicable. As was stated by the court below: “Such a determination . . . would neither be good law nor good logic.”

Section 1100 of the Plymouth Township Zoning Ordinance defines uses permitted in shopping center districts — including among others, “retail stores”. Therefore, the requested use is permitted within that district. It is Section 1101 setting forth “Development Bequirements” in shopping center districts Avhich is the topic of this controversy. A thorough reading of that section clearly shows that it was intended to regulate the development of shopping centers — “a harmonious selection of uses and grouping of buildings, service and parking area, circulation and open spaces, planned and designed as an integrated unit, . . .” As such, Section 1101 provides building and other specific requirements for uses Avithin the district in the same manner that other sections of the ordinance proAdde similar provisions for other use districts. However, Section 1102 goes further to provide special regulations exempting shopping centers, because of their very nature, from regulations otherAvise applicable throughout the township. In this manner, Section 1101(F) deals Avith parking.

Since single retail stores are permitted within shopping center districts, and since Section 1101 is the only regulation of development in that district, requests for retail stores must comply with. Section 1101. However, this does not mean that the more liberal requirements that Section 1101 provides for shopping .centers vis-a-vis uses in all other districts are applicable to the single Store merely because it exists in a shopping center district.

While the failure of the ordinance to provide specific requirements of set back, ground coverage, height, etc., for single stores situated in shopping center districts dictates that we must apply Section 1101; the fact that Section 1101 was not intended for single uses dictates that we apply the township wide provisions generally applicable to the requested use where Section 1101 provisions are in conflict therewith. As stated by the court below: “What can be more logical and clear than to simply apply that specific provision of the Zoning Code for parking spaces of a supermarket when it is undisputed that a supermarket [and only a supermarket] is to be built.”

In addition, I cannot agree with the majority that Section 1101(F) (1) in providing that the subsections thereof shall be in lieu of Section 1700, provides that the parking space number requirements in 1101(F) (2) shall also be in lieu of those in 1700. Judgé Yogel in his opinion below, correctly analyzed this question as follows: “It is obvious that the applicant is attempting to bundle the phrase in lieu of the requirements specified in Section 1700’ seen in'(F) (1) to encompass (F) (2) as well. This is not so: It should be clear that if the framers of the Ordinance meant that with respect to shopping centers the regulations as to off-street parking were to be in lieu of the requirements in Section 1700’, they could have accomplished such a result, thereby encompassing both (F) (1) and (F) (2), by inserting that language after the title of Section (F) of Section 1101 rather than a subsection (F) (1) whereby it became restrictive to those provisions (a) to (f) which immediately followed.

“Section 1101(F) (2) is separate and distinct from (F)(1)”

I would affirm the order of the court below without modification.