Lower Providence Township v. Ford , 3 Pa. Commw. 380 ( 1971 )

Opinion by

Judge Crumlish, Jr.,

These are appeals from an order of the Court of Common Pleas of Montgomery County which directed Lower Providence Township to issue permits for the construction of appellee’s trucking terminal. The Township’s Zoning Hearing Board had refused to grant the requested use. With some modification, we affirm the order of the court below.

Appellee, president of De-Pen Lines, Inc., a trucking company in Montgomery County, is seeking to construct a trucking terminal in an “I-Industrial” zone of Lower Providence Township. The township zoning ordinance permits only “commonly known industrial manufacturing pursuits when approved by the Zoning Board of Adjustment,” in “I-Industrial” districts. Appellee, therefore, requested approval of his proposed terminal but the Board of Adjustment (now the Zoning Hearing Board), after hearing testimony, denied the application on the grounds that a “trucking terminal” is not a manufacturing company and is not commonly known as an “Industrial Manufacturing Pursuit.” In somewhat an alternative stance, the Board further held that the requested use, in “performing all [the] necessary operations” of trucking, would be “detrimental to the health, safety and welfare of the adjoining property owners” and would not comply with the provisions of the Township zoning ordinance for industrial uses.

On appeal to the Court of Common Pleas of Montgomery County, a three judge panel, without additional evidence, unanimously reversed the Board and directed issuance of the necessary permits. Both the Township and an intervening protestant have brought appeals before us.

.“Where, as in this case, the Court below took no additional testimony, our review is limited to the narrow issue of whether the Board committed a manifest abuse of discretion or an error of law. Village 2 at New Hope, Inc. Appeals, 429 Pa. 626, 241 A. 2d 81 (1968) ; Di Santo v. Zoning Bd. of Adj., 410 Pa. 331, 189 A. 2d 135 (1963).” Burgoon v. Zoning Bd. of Adj., 2 Pa. Commonwealth Ct. 238, 277 A. 2d 837 (1971).

In Burgoon, as in this case, the Township zoning ordinance used overbroad terms to define uses permitted by special exception. As here, the Board in Burgoon, then attempted to ascribe a narrow meaning to-the-broad language in the ordinance. This Court stated then and herein reaffirms that “these terms must be given their broadest meanings. Any restriction on their use must be explicit and strictly construed. Rolling Green Golf Club Case, 374 Pa. 450, 97 A. 2d 523 (1953).” 2 Pa. Commonwealth Ct. at 245.

For the Board to conclude that a trucking terminal is not a common “Industrial Manufacturing Pursuit” it must have found that the above phrase in its broadest meaning does not include trucking. This Court- seriously doubts whether the narrowest meaning of this phrase would preclude trucking. In any event, the finding of the Board upon the record before us clearly demonstrates that the refusal to include trucldng as an “Industrial Manufacturing Pursuit” was a manifest abuse of discretion which infringed upon appellee’s constitutional rights.

“When the term [Industrial Manufacturing Pursuit] defines uses which are permitted, it is both permissive and restrictive. Without further limiting definition, the permissive nature of the phrase must be taken in its ‘broadest sense’. Gilden [Appeal, 406 Pa. 484, 178 A. 2d 562 (1962)]. On the other hand, any restrictive nature ascribed to the phrase must be taken in its strictest sense. Rolling Green, supra. This accords the landowner the benefit of the least restricted use and enjoyment of his land.” Burgoon, 2 Pa. Commonwealth Ct. at 248.

Alternatively, the Board held that the normal activity of the trucking terminal would be detrimental to the health, safety and welfare of the neighboring property owners. This finding is legally insufficient to support the refusal of the special exception. The impact from a permitted use which will justify the denial of a special exception for that use must be greater than the impact which normally results from the use. Archbishop O’Hara’s Appeal, 389 Pa. 35, 131 A. 2d 587 (1957). See also, Valley Forge Industries, Inc. Appeal, 406 Pa. 387, 177 A. 2d 450 (1962); Sibarco v. Zoning Bd. of Adj., 15 Ches. Co. Rep. 204 (1967). “Accordingly, if a zoning ordinance is drawn rationally, a decision to permit a use by special exception reflects at the least a legislative judgment that the degree of impact which necessarily flows from the use does not materially affect the public interest, and will not justify a denial of the use. The most common error of protestants and of the zoning boards in special exception cases is the failure to recognize that the existence of the special exception itself represents a legislative determination that the degree of impact is permissible.” Ryan, Pennsylvania Zoning, §5.2.6 (1970). It was an error of law for the Board to hold that the normal incidents of a trucking terminal were impermissible.¹

The final conclusion of the Board was that the use would not be permitted within the provisions of the zoning ordinance. The court below interpreted this conclusion to mean that the use was not permitted for reason of noxious or offensive effects or for reason of unmuffled use of internal combustion engines. Section 702 of the Township ordinance prohibits such use. The court below therefore passed upon the constitutionality of these prohibitions, finding them fatally vague and unreasonable. We find no need to pass upon this issue.²

The decision of the Board does not specify which provisions of the ordinance the Board found prohibited the requested use. As this Court has stated on numerous occasions, it does not intend to engage in guessing games with the quasi-judicial bodies of the Commonwealth. Rees v. Zoning Hearing Bd., 2 Pa. Commonwealth Ct. 551, 279 A. 2d 354 (1971); Pantry Quik, Inc. v. Zoning Bd. of Adj., 1 Pa. Commonwealth Ct. 326, 274 A. 2d 571 (1971). See Appeal of Mine, 30 Beaver 153 (1970) ; see also, Humble Oil and Refining Co. v. East Lansdowne Borough, 424 Pa. 309, 227 A. 2d 664 (1967). The Board has failed to present us with enumerated findings of fact and has presented an incomplete conclusion that the use is prohibited by the ordinance. Without proper foundation we can only hold this assertion insufficient to sustain the Board’s denial of the permits.

The Board, by virtue of Section 1101 of the zoning ordinance, has the power to impose appropriate conditions and safeguards when granting special exceptions. The Board should have that opportunity in the present case. However, we will not countenance the imposition of conditions which would limit the normal function of appellee’s terminal. We remand only for the consideration of such conditions as will buffer the residential neighbors from the industrial zone.

Order

And Now, this 5th day of November 1971, this matter is remanded to the Court of Common Pleas of Montgomery County with the direction to return the record to the Zoning Hearing Board of Lower Providence Township for consideration of the imposition of conditions consistent with this opinion; after final determination of the imposition of such conditions the appropriate official of the Township is directed to issue the requisite permits to the appellee for his proposed construction and use of the subject premises, subject to the requisite fees being paid in full compliance with all other lawful ordinances of the Township.

Judge Mandbrino concurs in result only.

1 Appellants urge upon us the case of Valley Forge Industries, Inc. Appeal, 406 Pa. 387, 177 A. 2d 450 (1962) which upheld the refusal to permit a truck storage yard in a commercial zone as a special exception because of its effects on the neighborhood. In Valley Forge, the effects on the neighborhood were essentially the result of “improper design” associated with that particular requested use. We find the Valley Forge case consistent with the policy enunciated in Archbishop O’Hara, and therefore not controlling in this case.

2 We must note in passing that where the prohibitions found in Section 702 result in the total exclusion of that use from, the entire township, the reasons for prohibiting that use must not only conform to the tests used by the court below, but must also comply with Exton Quarries, Inc. v. Zoning Bd. of Adj., 425 Pa. 43, 228 A. 2d 169 (1967). See also, Beaver Gasoline Co. v. Zoning Hearing Bd., 1 Pa. Commonwealth Ct. 458, 275 A. 2d 702 (1971) ; Daikeler v. Zoning Bd. of Adj., 1 Pa. Commonwealth Ct. 445, 275 A. 2d 696 (1971).