Lower Southampton Township v. B. P. Oil Corp.

Dissenting Opinion by

Judge Rogers :

I respectfully dissent.

The court below, which did not receive evidence, concluded that the Zoning Hearing Board of Lower Southampton Township committed an abuse of its discretion and an error of law in denying a special exception for the location of a gasoline service station at the intersection of Central Avenue and Street Road.

As the majority here concedes, the intersection is shown by the record to be hazardous. School children cross it on foot, school busses stop there, at least 42 accidents, one fatal to a school child, have occurred there within the last several years, and the Township Police Chief believes that the proposed gasoline station will increase the existing danger to persons and property using the crossing. In addition, there are presently two service stations at the intersection and three others within a distance of one-half mile. I find no less justification for the denial of the special exception here than existed in Marple Township Appeal, 440 Pa. 508, 269 A. 2d 699 (1970); Blair v. Board of Adjustment, 403 Pa. 105, 169 A. 2d 49 (1961); Township of Abington v. Rocks Associates, Inc., 11 Pa. Commonwealth Ct. 95, 312 A. 2d 98 (1973); and Cherbel Realty Corp. v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 137, 285 A. 2d 905 (1972), which cases are not referred to by the court below and which hold that in special exception cases involving gasoline service stations and similar uses anticipated traffic congestion may properly be the sole basis for denial of the application.

I believe that the court below and the majority here have simply substituted their findings and conclusions for those of the Zoning Hearing Board which, as we held in Gaudenzia, Inc. v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 355, 287 A. 2d 698 (1972), should not be done unless the Board capriciously disregarded the evidence or manifestly abused its discretion.