Ad Hoc Committee v. Zoning Board

518 A.2d 614, 102 Pa. Commw. 390, 1986 Pa. Commw. LEXIS 2729
CourtCommonwealth Court of Pennsylvania
DecidedDecember 8, 1986
DocketAppeal, No. 424 C.D. 1986
StatusPublished

This text of 518 A.2d 614 (Ad Hoc Committee v. Zoning Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ad Hoc Committee v. Zoning Board, 518 A.2d 614, 102 Pa. Commw. 390, 1986 Pa. Commw. LEXIS 2729 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge Doyle,

This is an appeal by the Ad Hoc Committee for the Betterment of Port Richmond (Committee) from an order of the Court of Common Pleas of Philadelphia County affirming a determination of the Zoning Board of Adjustment of the City of Philadelphia (Board) which granted a certificate1 for the storage of scrap metal and dismantling or wrecking of used motor vehicles to Camden Iron & Metal, Inc. (Camden).

The case began when Camden filed an application with the Department of Licenses and Inspection (Department) for a zoning and/or use permit for premises located at 2501-2899 Richmond Street. The subject property is located in a district zoned G-2 Industrial. The Department referred the matter to the Board because the storage of scrap metal and dismantling or wrecking of used motor vehicles in a G-2 Industrial district requires a certificate from the Board pursuant to Section 14-508(2)(b) of the Philadelphia Zoning Code (Code). This Section, which pertains to uses in G-2 Industrial districts, provides:

[392]*392 Use Regulations-With Certificate.
The following uses will be permitted in this district only if a Zoning Board of Adjustment Certificate is obtained:
(b) Dismantling or wrecking of used motor vehicles, storage and sale of dismantled, partially dismantled, inoperative or wrecked vehicles or their parts. . . .

The Board conducted a public hearing during which both Camden and the Committee presented live witnesses and documentary evidence. Subsequent to the hearing the Board determined that Camden had met its burden to show that it was entitled to a certificate under the criteria set forth in Section 14-1803 ol the Code2 and hence granted the certificate. The Board [393]*393order also adopted the recommendations of the City Planning Commission which in a May 15, 1985 letter to the Board had suggested, inter alia, that the certificate be limited to Camden’s leasehold.3

The Committee appealed the Board’s decision to the common pleas court which, without taking additional evidence, affirmed. Appeal to this Court followed. On appeal the Committee raises the same four issues for our consideration which were raised below. We will examine its arguments seriatim, keeping in mind that where, as here, the trial court does not take additional evidence, our scope of review in a zoning appeal is limited to determining whether the Board committed an error of law or abused its discretion. Fabrizi v. Zoning Hearing Board of the Borough of Brentwood, 91 Pa. Commonwealth Ct. 340, 497 A.2d 276 (1985).

The Committee first asserts that Camden failed to meet its burden of establishing that its proposed use is one actually permitted in a G-2 Industrial district with the grant of a certificate. Specifically, the Committee contends that Camden in its petition to the Board stated that its proposed use was for a steel processing facility and that the evidence presented did not in fact show that the proposed use was the dismantling and wrecking of used motor vehicles. Hence, the Committee argues, the Board erred in granting the certificate. What the testimony disclosed was that Camden intended to use an automobile shredding machine that would take precrushed automobiles that have been stripped, and shred them into fist-sized pieces of material. N.T. 8-9. [394]*394The Committee contends that Section 14-508(2)(b) of the Code encompasses “the traditional type of automobile junkyard where automobiles are brought intact and dismantled stripping them of their parts which are then stored and sold.” Committees Brief p. 13. It then argues that the shredding activity does not, as a matter of law, constitute dismantling and wrecking and hence Camden has not proved its entitlement to a certificate.

We believe, however, that our decision in Wojtowicz v. Hanover Township Zoning Hearing Board, 23 Pa. Commonwealth Ct. 12, 350 A.2d 419 (1976) compels a contrary conclusion. In Wojtowicz, as here, the question was whether a scrap metal processing plant which engaged in shredding, bailing, and shearing metals constituted a junkyard under the applicable township ordinance. The term “junkyard” employed in the ordinance was undefined. We said in Wojtowicz that because the term was undefined it should be interpreted in its broadest sense and held that the metal processing plant constituted a junkyard. In the instant case while the term junkyard does not appear in the pertinent Code Section, the Committee argues, as noted above, that this section only encompasses junkyards in the traditional sense. We disagree. We believe that the activities here in question should be considered junkyard activities and moreover are sufficiently akin to the traditional method of wrecking, dismantling, cutting and sorting scrap so as to fall within the Code provisions. Accordingly, we hold that the shredding activities did constitute dismantling and wrecking as those terms are used in the Code.

The Committee next contends that the proposed use is prohibited by law in a G-2 Industrial district because Section 14-508(3) of the Code generally prohibits uses in a G-2 Industrial district which are specifically listed as permitted uses in a district identified as Least [395]*395Restricted District. Language identical to that in Section 14-508(2)(b) of the Code, that would allow this use in the G-2 Industrial district, does appear as a specific permitted use in the Least Restricted District as well. See Section 14-509(1)(f). It would thus appear that what is granted on the one hand (§14-508(2)(b)), is taken away by the other (§14-508(3)). To resolve this conflict the Committee first advocates reliance upon Section 14-509(1)(a) of the Code which provides:

‘Least Restricted’ Industrial District
Use Regulations. The specific uses permitted in this district shall be the erection, construction, alteration or use of buildings and/or land for:
(a) the uses permitted in ‘G-2’ General Industrial Districts, with all use qualifications removed, except that when any use is herein defined, listed, or prohibited, the regulations of this district shall apply.

This provision, however, governs only uses permitted in Least Restricted Industrial Districts as used within that district itself. Similarly faulty is the Committee’s reliance upon the principle of statutory construction that where clauses are irreconcilable the last clause in order shall prevail.4 See Section 1934 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1934. This is because Section 1934 explicitly provides that it applies only in instances where the conflict is not between a particular statute and the general one. The instant case presents exactly such a situation; the exclusionary clause appearing in Section 14-508(3) applies generally to G-2 Industrial Districts, whereas the clause appearing in Section 14-508(2)(b), which specifically permits the use in a G-2 Industrial district, is the specific provision. Hence we hold that Section 14-508(2)(b) must prevail.

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Cite This Page — Counsel Stack

Bluebook (online)
518 A.2d 614, 102 Pa. Commw. 390, 1986 Pa. Commw. LEXIS 2729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ad-hoc-committee-v-zoning-board-pacommwct-1986.