Bakerstown Container Corp. v. Richland Township

500 A.2d 420, 508 Pa. 628, 1985 Pa. LEXIS 424

• Court: Supreme Court of Pennsylvania
• Decided: November 18, 1985
• Docket: 87 W.D. Appeal Docket 1984
• Status: Published

Opinions

OPINION

*

McDermott, Justice.

Bakerstown Container Corporation, appellant, seeks relief from the denial of a construction permit for a proposed metal drum reconditioning plant. The Zoning Hearing Board of Richland Township determined that Bakerstown’s proposed use would not qualify under the relevant permitted use provision of the local ordinance, and denied the permit. The Court of Common Pleas of Allegheny County reversed, and the Commonwealth Court subsequently reversed that decision.¹ We granted review.

Where, as here, the Court of Common Pleas has not received evidence additional to that considered by the Board, our scope of review is limited to determining whether the Board abused its discretion, committed an error of law, or made findings of fact not supported by substantial evidence. Appeal of M.A. Kravitz Co., Inc., 501 Pa. 200, 460 A.2d 1075 (1983); Fidler v. Zoning Board of Adjustment, 408 Pa. 260, 182 A.2d 692 (1962). With that in mind, we turn to an examination of the considerations before the Board.

The area in which Bakerstown proposes to build its plant is zoned as Restricted Light Industrial. The controlling ordinance lists a number of permitted uses for such areas, but only one is of arguable application herein. Section 10.112 of the Zoning Ordinance of Richland Township authorizes the following use: “Box, cooperage or packaging materials manufacturing.”

There was testimony before the Board that metal drums would be brought to the proposed plant and stripped of their residual wastes, following which the drums would be cleaned, shot blasted, repainted, and, in general, reconditioned and repaired. There was also testimony that residual wastes from the incoming drums would be rinsed from the interior of the drums, turned into paste or sludge, and ultimately disposed of. Finally, there was testimony to the effect that some of the residual waste materials involved would qualify as toxic or hazardous.

After giving careful consideration to the testimony presented, the Board determined that the proposed plant’s operations would not qualify as a permitted use under Section 10.112. We are constrained to agree.

We are mindful that permissive terms in zoning ordinances should be construed expansively, so as to afford the landowner the broadest possible use and enjoyment of his land. Fidler, supra; Gilden’s Appeal, 406 Pa. 484, 178 A.2d 562 (1962). Moreover, the plain words of a zoning ordinance must be given their usual and ordinary meaning. Shapiro v. Zoning Board of Adjustment, 377 Pa. 621, 105 A.2d 299 (1954). Nevertheless, we cannot accept the construction urged upon us by appellant without violating the clear intent of the ordinance. Section 10.112 authorizes “Box, cooperage or packaging materials manufacturing." Notwithstanding that the word “cooperage” embraces repair in its ordinary usage, the term as used in the ordinance has been given a specific context, that of manufacturing. Thus, “(b)ox, cooperage or packaging materials” describe the nature of the manufacturing that is permissible under Section 10.112.

Moreover, while appellant urges that the proposed reconditioning of the metal drums might constitute “manufacturing” under an expansive construction, we must reject this argument. Recently this Court defined the term “manufacturing” in the companion cases of Bindex Corp. v. City of Pittsburgh, 504 Pa. 584, 475 A.2d 1320 (1984), and Tucker v. City of Pittsburgh, 504 Pa. 580, 475 A.2d 1318 (1984). In Bindex, we said,

The concept underlying the definition [of manufacturing] is the transformation of material or things into something different from that received. The difference cannot be a superficial change that does not alter or change the thing. For example, a cosmetic change performed merely to facilitate the ease of handling, storing, packing or shipping the product or material does not constitute manufacturing. What is required is that the basic materials or goods be given a new identity by the current producer, one which can be easily traced to such producer____ When labor is used in conjunction with skill to produce a different product than the original, one with a new identity, manufacturing has occurred.

Bindex, supra 504 Pa. at 587-588, 475 A.2d at 1322 (footnote omitted). Or, to put it another way, “[t]he process must alter or change the thing itself into something different, new and useful,” Tucker, 504 Pa. at 583, 475 A.2d at 1320. See Golden Triangle Broadcasting, Inc. v. City of Pittsburgh, 483 Pa. 525, 397 A.2d 1147 (1979); Commonwealth v. Berlo Vending Company, 415 Pa. 101, 202 A.2d 94 (1964); Philadelphia School District v. Rosenberg, 402 Pa. 365, 167 A.2d 259 (1961); Philadelphia School District v. Parent Metal Products, Inc., 402 Pa. 361, 167 A.2d 257 (1961); Norris Brothers v. Commonwealth, 27 Pa. 494 (1856).

We are unpersuaded that the plant proposed by Bakers-town would transform a barrel into anything but a barrel. Flushing it of toxic residue, undenting it, shot blasting it, resealing it, and repainting it will not make it something other than a barrel. Absent that character of “manufacturing,” we agree with the Board and sustain their rejection of appellant’s petition.

The order of the Commonwealth Court is affirmed.

PAPADAKOS, J., did not participate in the consideration or decision of this case. LARSEN, J., joins in the majority opinion and files a concurring opinion. FLAHERTY, J., files a dissenting opinion in which ZAPPALA, J., joins.

This opinion was reassigned to this author on September 11, 1985.

1 . The Commonwealth Court rejected appellant’s contention in a two-to-one decision, with an opinion authored by the Honorable Alexander F. Barbieri. 82 Pa.Cmwlth. 287, 474 A.2d 1218 (1984). The . Honorable Theodore O. Rogers filed a dissenting opinion.