Brunner v. Zoning Hearing Board

315 A.2d 359, 12 Pa. Commw. 109, 1974 Pa. Commw. LEXIS 1025
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 7, 1974
DocketAppeal, No. 199 C.D. 1973
StatusPublished
Cited by25 cases

This text of 315 A.2d 359 (Brunner v. Zoning Hearing 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
Brunner v. Zoning Hearing Board, 315 A.2d 359, 12 Pa. Commw. 109, 1974 Pa. Commw. LEXIS 1025 (Pa. Ct. App. 1974).

Opinion

Opinion by

Judge Crumlish, Jr.,

Appellee Monk stirred up the individual Appellants when he induced the Zoning Board of Upper Makefield Township (Board) to grant him a special exception to operate a private heliport on 5.7 acres of vacant ground which had been specifically leased for that purpose.

Appellee’s first application for a special exception under Section 613 of the Upper Makefield Zoning Ordinance to locate a heliport on his own land in August of 1971 was rejected by the Board because his property consisted of 3.5 acres, and could not meet the State minimal requirement of 500 foot helicopter approaches without encroaching upon the airspace of adjacent properties. Monk then leased, subject to zoning approval, a 200 by 200 feet landing area directly across the road from his property, and in addition, the right to fly over the remainder of the lessor’s 60 acre farm. In considering Appellee’s reapplication for a special exception, the Board conducted two hearings in November and December of 1971 which resulted in extensive testimony relative to the noise level of the proposed heliport and its effect upon the property values in the Residential-Agriculture district in which this property is located. In its decision dated January 29, 1972, the Board granted the special exception, concluding that the heliport would be compatible with adjacent residential uses upon the condition that (1) the heliport be limited to one privately owned helicopter of less than 200 horsepower, and (2) that its landing pad be set back at least 500 feet from the nearest public road or property line. The Board and Monk’s position was sustained by the Court of Common Pleas of Bucks County. Appellants now come to us for relief.

[112]*112Where the court below has taken no additional evidence, our scope of review in a zoning case is limited to a determination of whether or not the zoning hearing board committed an abuse of discretion or an error of law. Clawson v. Harborcreek Zoning Hearing Board, 9 Pa. Commonwealth Ct. 124, 304 A. 2d 184 (1973); The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A. 2d 234 (1973). Our review of the record, which we find supports the findings of fact of the Board, reveals neither an error of law nor an abuse of discretion, and so we affirm.

Appellant’s initial contention is that the Board and Court of Common Pleas committed an error of law in its construction of Section 613 of the Ordinance as authorizing an airfield use by special exception. A close reading of Section 613 convinces us that this argument is without merit. It provides:

“Airfields

“1. No airplane landing field of any class shall be constructed, laid out, or maintained in the said Township, except by express authority of and after hearing had by the Zoning Hearing Board, said Zoning Hearing Board first giving notice to adjoining property owners, which must be by public notice published once a week for three weeks in a newspaper circulating generally in said Township.”

It is evident that Section 613 functionally, if not expressly, creates an “airfield” use as a special exception throughout Upper Makefield Township. “A special exception is not an ‘exception’ to a zoning ordinance. It is a permitted use which an applicant is entitled to have, unless the Board determines, according to the standards in the zoning ordinance, that the use would adversely affect the community.” Berlant v. Zoning Hearing Board of Lower Merion Township, 2 Pa. Commonwealth Ct. 583, 586, 279 A. 2d 400, 401 (1971); [113]*113Jones v. Zoning Hearing Board and The Tennis Club, 7 Pa. Commonwealth Ct. 284, 298 A. 2d 664 (1972). Although Section 613 does not specifically define the use as a “special exception,” exact terminology is hardly determinative because the language of the provision evidences an intention by its draftsmen that it be treated as a special exception. Phi Lambda Theta Zoning Case, 400 Pa. 60, 161 A. 2d 144 (1960); Root v. Erie Zoning Board of Appeals, 180 Pa. Superior Ct. 38, 118 A. 2d 297 (1955).

We are next asked to declare Section 613 void because it does not establish sufficient standards to guide the Board in its consideration of the merits of applications for special exceptions for airfields throughout the township. This, Appellants urge, constitutes an improper delegation of legislative power. In considering the Ordinance as a whole, however, we find that there are sufficient standards to guide and control, if need be, the Board’s discretion in considering applications for special exceptions under Section 613. Section 101 of the Ordinance provides: “Section 101. Interpretation. In interpreting and applying the provisions of this Ordinance, they shall be held to be the minimum requirements for the promotion of the public health, safety, comfort, convenience and general welfare. Where provisions of this Ordinance impose greater restrictions than those of any statute, other ordinances, or regulation, the provisions of this Ordinance shall be controlling. Where the provisions of any statute, other ordinance or regulation impose greater restrictions than this Ordinance, the provisions of such statute, other ordinance or regulation shall be controlling.” (Emphasis a,dded.) Identical language to that emphasized above was held to constitute a sufficient standard by our Supreme Court in Archbishop O’Hara’s Appeal, 389 Pa. 35, 121 A. 2d 587 (1957) and would alone be an adequate check on the Board’s powers.

[114]*114The instant Ordinance, moreover, goes beyond the standards approved in Archbishop O’Hara’s Appeal, supra, Section 100 provides: “Purposes. This Ordinance is enacted for the following purposes: To promote the health, safety, morals and general welfare of the inhabitants of Upper Makefield Township by lessening congestion in the roads and streets; securing safety from fire, panic and other dangers; providing adequate light and air; preventing the overcrowding of land, avoiding undue concentration of population; facilitating the adequate provisions of transportation, water, sewage, schools, parks and other public requirements giving consideration to the character of the district and its particular suitability for particular uses; conserving the value of buildings; and encouraging the most appropriate use of land pursuant to the comprehensive plan of the Township.” This section is substantially similar to the preamble approved in Good Fellowship Ambulance Club’s Appeal, 406 Pa. 46.5, 469, 178 A. 2d 578 (1962), where the Court stated: “It would appear from a reading of this section that the learned court beIoav was unnecessarily concerned lest the Board might have no lantern to guide its deliberations in granting or refusing exceptions and therefore could get lost in the swamps of indecision and ambiguity. The lantern, however, is there shining Avith exceptional brightness. Health, safety, morals, general welfare, lessening of congestion, facilitation of transportation, water, and education are some of the beams of this light of direction.” We find this language equally applicable to Section 100 which, when read Avith Section 101, establishes adequate safeguards to control the Board’s discretion in granting or denying special exceptions under Section 613.

Appellants would have us distinguish Archbishop O’Hara’s Appeal, supra, and Good Fellowship Ambulance Club’s Appeal, supra, by contrasting the nature of the uses allowed by special exception there (“educa[115]

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Bluebook (online)
315 A.2d 359, 12 Pa. Commw. 109, 1974 Pa. Commw. LEXIS 1025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brunner-v-zoning-hearing-board-pacommwct-1974.