In re U. S. Aluminum Corp.

553 A.2d 1046, 123 Pa. Commw. 376, 1989 Pa. Commw. LEXIS 66
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 8, 1989
DocketAppeals Nos. 341 C.D. 1988 and 474 C.D. 1988
StatusPublished
Cited by9 cases

This text of 553 A.2d 1046 (In re U. S. Aluminum Corp.) 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
In re U. S. Aluminum Corp., 553 A.2d 1046, 123 Pa. Commw. 376, 1989 Pa. Commw. LEXIS 66 (Pa. Ct. App. 1989).

Opinion

Opinion by

Senior Judge Narick,

U.S. Aluminum Corp. of Pennsylvania (Appellant) has appealed from an order of the Court of Common Pleas of Lancaster County which affirmed a decision of the Zoning Hearing Board (Board) of Marietta Borough (Borough) subjecting Appellant’s use of an aluminum shredder to limitations on the hours of operation. The Borough has cross-appealed to preserve its right to object to the trial court’s rejection of its res judicata argument.1

The procedural history of this matter is lengthy. Appellant operates an aluminum recycling business in the Borough.2 In 1971, it applied to the Borough for a special [379]*379exception from setback requirements to install a shredder. The Board granted the special exception but limited the hours of operation of the shredder to between 8:00 a.m. and 4:00 p.m. Monday through Friday. No appeal was taken from this decision. In 1975 and 1978, Appellant submitted applications to the Board to increase the hours of operation. Both were denied and Appellant did not appeal from either decision. In 1984, the Borough Zoning Officer issued a cease and desist order because of citizen complaints that Appellant was operating the shredder beyond the hours allowed.

Appellant appealed this decision to the Board, 1) seeking to have the hours of operation modified, 2) seeking a variance from the limitation on the hours of operation and 3) challenging the validity of applicable sections of the zoning ordinance on the grounds that they did not contain sufficient standards for the imposition of conditions upon operations. Following an adverse decision, Appellant appealed to common pleas court which remanded. The court found that the original special exception related to setbacks from a street, West Hazel Avenue, which the Borough had since vacated, resulting in a substantial change of conditions, allowing the Board to reconsider an application which was previously before it under other circumstances. However, the court also found that Appellant would need a special exception, under the terms of the zoning ordinance, to operate its [380]*380shredder and directed the Board to consider both Appellant’s application therefor and its constitutional challenge. On remand, the Board dismissed the constitutional challenge and granted the special exception, subject to the same conditions originally imposed in 1971. The common pleas court affirmed, without taking additional evidence, and this appeal ensued.

Where a trial court has not taken additional evidence, our scope of review is limited, as was the trial court’s, to determining whether the Board has committed an error of law or a manifest abuse of discretion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

The issues raised by Appellant are 1) whether the operation of its shredder is a permitted use and therefore beyond the scope of the Board’s authority to regulate it by placing conditions upon the hours of operation; 2) whether the Borough ordinance is unconstitutionally vague; and 3) whether the Board abused its discretion in denying Appellant a variance to extend the hours during which the shredder could be operated.

The Borough argues that the threshold issue before us is whether the doctrine of res judicata applies to bar our consideration of Appellant’s appeal where it thrice failed to appeal from Board decisions imposing identical limitations on the hours of operation of the shredder. We have recognized that there are circumstances which allow an applicant to seek modification of the conditions attached to an unappealable special exception if there has been a subsequent, substantial change in conditions incident to the land itself. Amoco Oil Co. v. Zoning Hearing Board of Middletown Township, 76 Pa. Commonwealth Ct. 35, 463 A.2d 103 (1983).3

[381]*381Where an applicant seeks to establish that substantial changes have occurred which affect the conditions attached to a previously granted special exception, the precise nature of that party’s burden was further explained in this Court’s recent decision in Gazebo, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 112 Pa. Commonwealth Ct. 37, 535 A.2d 214 (1987). In Gazebo, a restaurant was granted a special exception to operate a roof-deck dining area subject to certain conditions. The zoning board, in its initial decision, recognized that it was dealing with a new type of use and left open the possibility of modifying the conditions it imposed after the restaurant had had an opportunity to operate the roof-deck area during its first season. Upon the restaurant’s application for modification of the conditions limiting its hours of operation and prohibiting music, the board denied the application because of the detrimental effect on the surrounding properties. In affirming the board’s decision, we noted that the board correctly had not placed a. burden on the objectors to prove detriment to the public health, safety and welfare, such as they had borne in the initial proceedings when they had opposed the grant of the special exception itself.4 That original decision was not appealed and thus became final. Consistent with our decision in Amoco, we held in Gazebo that the restaurant, as the applicant to remove a limitation on a use previously allowed by special exception, bore the burden of proving a subsequent substantial change in [382]*382conditions, which, as we noted, “necessarily refers to factual circumstances ... .” Id. at 46, 535 A.2d at 218.

Such is the case here. The Board, in its original May 29, 1985 decision, recognized that Appellant had to prove a substantial change in the factual circumstances of its operation of the shredder in order to seek relief from the limitations it had imposed in 1971. The Board, in considering all of the evidence presented at the three hearings on Appellant’s application, did not consider the Borough’s vacation of West Hazel Avenue to be relevant to the issue of noise and vibration caused by the shredder. We must agree and believe that the trial court erred in ordering a remand for the Board to consider an irrelevant change of circumstances. Appellant had argued before that court that because the Borough had vacated West Hazel Avenue, the original reason for the special exception no longer applied.

While it is evident that confusion exists as to the grounds for the Board’s imposition of the limited hours of operation in 1971, it is equally apparent that those conditions were not related to the setback requirements but, rather, were imposed because of concern regarding the disturbance to surrounding properties which the shredder would cause.5 The time to challenge those conditions [383]*383was at the time they were imposed because our cases are clear that a timely appeal is the exclusive method of challenging a zoning board’s decision. See, e.g., Babin v. City of Lancaster, 89 Pa. Commonwealth Ct. 527, 493 A.2d 141 (1985);

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Bluebook (online)
553 A.2d 1046, 123 Pa. Commw. 376, 1989 Pa. Commw. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-u-s-aluminum-corp-pacommwct-1989.