In re Appeal of Terra Grain, Inc.

13 Pa. D. & C.3d 400, 1979 Pa. Dist. & Cnty. Dec. LEXIS 85
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedNovember 20, 1979
Docketno. 45
StatusPublished

This text of 13 Pa. D. & C.3d 400 (In re Appeal of Terra Grain, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of Terra Grain, Inc., 13 Pa. D. & C.3d 400, 1979 Pa. Dist. & Cnty. Dec. LEXIS 85 (Pa. Super. Ct. 1979).

Opinion

MUELLER, J.,

This is an appeal from a decision of the Zoning Hearing Board of West Hempfield Township. Appellant Terra Grain, Inc. owns approximately 15 acres of land located on the northwest side of Spooky Nook Road, east of Eby Chiques Road, in West Hempfield Township. Appellant also owns 93 acres across the road from these 15 acres which it farms. On April 5, 1979, appellant filed an application for a special exception under section 702.9(G) of the West Hempfield Township Zoning Ordinance to construct a facility for the confined production of hogs. The area in which appellant’s property is located is zoned rural and for agricultural use.

A hearing was held before the board on May 8, 1979, and an oral decision by the board was rendered on June 12, 1979. The board granted the special exception sought by appellant but attached certain conditions to that special exception. Appellant [402]*402appeals from the board’s decision arguing that attaching conditions A, B, C, D, E, J, and K to the special exception was an abuse of discretion on the part of the board.

The conditions appellant objects to are:

“Condition A — This special exception inures only to the entity Terra Grain, Inc. This is to say that the operations of hog confinement facilities are to be manned by employees or stockholders of the corporation.
Condition B — The facilities may not be leased or assigned to any other individual, partnership, proprietorship, association, co-op, corporation, joint venture or other entity without Board approval of a special exception.
Condition C — The granted special exception applies only to the office, gestation, farrowing and nursery units and to a slurrystore with a capacity of approximately four hundred eighteen thousand (418,000) gallons, and the incinerator.
Condition D — The applicant will have to apply for a special exception if and when they decide to build a grower and a finishing house.
Condition E — There can be no subdivision of the one hundred eight (108) acres as long as the hog house is in operation without Board approval.
Condition J — Use of the incinerator is permitted only on the following schedule:
1. April through October — 6:00 a.m. to 6:00 p.m.;
2. November through March — 8:00 a.m. to 2:00 p.m.;
3. No use permitted on Saturday or Sundays;
4. No use permitted on a nationally observed holiday.
[403]*403Condition K — Storage of deceased pigs and afterbirth matter will be placed in a reefer suited for that purpose until such time of the disposal of any deceased pigs or afterbirth matter.”

A zoning hearing board has the power to attach conditions to the grant of a special exception. Conditions imposed by a zoning board must be reasonable, based on the evidence in the record and bear a reasonable relationship to the health, safety and general welfare: Van Sciver v. Zoning Board of Adjustment, 396 Pa. 646, 152 A. 2d 717 (1959). All but one of the conditions objected to by appellant do not fit these requirements. They are, therefore, arbitrary and an abuse of the board’s discretion.

Conditions A and B

The obvious effect of these two conditions is to make the granting of the special exception personal to the appellant. While the board may grant a special exception conditionally or limit it in time or use in any manner consistent with the zoning ordinance, the special exception always runs with the land and cannot be personal: Tremblay Appeal, 53 D. & C. 2d 766 (1971); Fernald Appeal, 17 D. & C. 2d 291 (1958). The impact of zoning regulations relates to matters of use of the property, not to the identity of the owner: Tremblay Appeal, supra; Widenmeyer v. Northampton Twp. Zoning Bd. of Adjustment, 12 Bucks 582 (1962).

The board’s justification for the imposition of these conditions is that they will “. . . insure the community that individuals with the appropriate expertise would manage and operate the facilities. . . .” (“Answer” of West Hempfield Township Zon[404]*404ing Hearing Board, ¶6^)(1).)

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Related

Van Sciver v. Zoning Board of Adjustment
396 Pa. 646 (Supreme Court of Pennsylvania, 1959)

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Bluebook (online)
13 Pa. D. & C.3d 400, 1979 Pa. Dist. & Cnty. Dec. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-terra-grain-inc-pactcompllancas-1979.