Dillon Real Estate Co. v. Zoning Hearing Board of the Borough of Mount Pocono

688 A.2d 1264, 1997 Pa. Commw. LEXIS 68

• Court: Commonwealth Court of Pennsylvania
• Decided: February 12, 1997
• Status: Published

Opinions

McGINLEY, Judge.

Dillon Real Estate Company, Inc., and Dillon Companies, Inc., t/d/b/a Turkey Hill Min-it Markets (Turkey Hill), appeals from an order of the Court of Common Pleas of Monroe County (common pleas court) sustaining the decisions of the Borough of Mount Pocono (Mount Pocono) and the Mount Pocono Borough Zoning Hearing Board (ZHB) denying Turkey Hill’s land development plan.

Turkey Hill owns a parcel of real estate at the intersection of Route 611 and Kinney Avenue in Mount Pocono. The parcel is located in a downtown commercial (C-l) zoning district. Turkey Hill submitted a land development plan to the Mount Pocono Borough Council (Borough Council) proposing to establish a convenience store which sells gasoline. The Borough Council determined that the sale of gasoline is not permitted on Turkey Hill’s parcel and disapproved the convenience store plan.

Turkey Hill appealed the decision to the ZHB,¹ arguing that the sale of gasoline would not be the principal use of the property but, rather, an accessory use to the convenience store. The ZHB made the following relevant findings of fact:

4. The Property is located in the C-l Downtown Commercial District as shown on the Official Zoning Map of Mount Pocono Borough.

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9. Turkey Hill ... proposes to construct a self-service gasoline facility consisting of a single 24' x 36' canopy and two multi-product dispensers (“MPDs”) which would allow a maximum of four motor vehicles to obtain fuel at the same time.

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13. On a gross sales basis, gasoline sales constitute forty-seven per cent (47%) of Turkey Hill’s gross sales at stores with gasoline facilities.

ZHB’s Decision, December 28, 1994, (Decision) at 6-7, Findings of Fact, Nos. 4, 8, 13.

The ZHB concluded that “[t]he Mount Pocono Zoning Ordinance prohibits gas sales in the C-l zone.” Decision at 8, Conclusions of Law, No 3. The ZHB also concluded that “[a]s the sale of gasoline is prohibited in a C-1 zone ... it is prohibited for all purposes, as a permitted use, as well as an accessory use.” Decision at 8, Conclusions of Law, No 7. Accordingly, the ZHB dismissed Turkey Hill’s appeal.

Turkey Hill appealed the ZHB’s decision to the common pleas court, which held oral argument on the matter.² The common pleas court concluded that the sale of gasoline is not an accessory use and that even if it was an accessory use, gasoline sales are not permitted in a C-l zoning district pursuant to Section 5.2(c) of the Mount Pocono Zoning Ordinance (Ordinance).

On appeal to this court,³ Turkey Hill contends that the common pleas court erred in concluding that the sale of gasoline is prohibited in a C-l zoning district. Turkey Hill asserts that the gasoline sales are permitted as long as such sales constitute secondary or accessory uses. We do not agree.

Scrutiny of the record reveals that gasoline sales are expressly permitted in general commercial (C-2) zoning districts under the wholesale and retail trade provisions of Section 5.8(a) of the Ordinance. Ordinance at v-7; Reproduced Record (R.R.) at 26a. Such sales are not expressly permitted in C-l zoning districts under any provision of Section 5.7(a) of the Ordinance. Ordinance at v-5 — v-6; R.R. at 24a-25a. All parties agree that the property is zoned C-l. Additionally, Section 5.2(c) of the Ordinance provides that “[a]ny use not permitted by this Ordinance within any district shall be deemed to be prohibited within that district.” Ordinance at v-2; R.R. at 23a. The common pleas court correctly concluded that the Borough Council by this Ordinance restricted gasoline sales, including, but not limited to accessory sales, to C-2 districts. There is nothing improper about prohibiting the sale of gasoline in a specific zone such as Mount Pocono did here.

Accordingly, we affirm.

ORDER

AND NOW, this 12th day of February, 1997, the order of the Court of Common Pleas of Monroe County in the above-captioned matter is affirmed.

1 . We note that Turkey Hill also appealed the Borough Council’s decision to the common pleas court.

2 . We note that Turkey Hill's appeal of the Borough Council’s decision to the common pleas court was consolidated with the appeal of the ZHB’s decision.

3 . Where the common pleas court takes no additional evidence, the standard of review in an appeal from a decision of a zoning hearing board is to determine whether the board committed an enror of law or a manifest abuse of discretion. Larsen v. Zoning Board of Adjustment, 654 A.2d 256 (Pa.Cmwlth.1995), aff'd, 543 Pa. 415, 672 A.2d 286 (1996). An abuse of discretion occurs when the board’s findings are not supported by substantial evidence in the record. Eichlin v. Zoning Hearing Board, 671 A.2d 1173 (Pa.Cmwlth.1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Rural Area Concerned Citizens, Inc. v. Fayette County Zoning Hearing Board, 166 Pa.Cmwlth. 520, 646 A.2d 717 (1994), appeal denied, 540 Pa. 636, 658 A.2d 798 (1995).