North Penn Water Authority v. Zoning Hearing Board

24 Pa. D. & C.3d 357, 1981 Pa. Dist. & Cnty. Dec. LEXIS 113
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedApril 6, 1981
Docketno. 80-10260
StatusPublished

This text of 24 Pa. D. & C.3d 357 (North Penn Water Authority v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Penn Water Authority v. Zoning Hearing Board, 24 Pa. D. & C.3d 357, 1981 Pa. Dist. & Cnty. Dec. LEXIS 113 (Pa. Super. Ct. 1981).

Opinion

SCIRICA, J.,

On July 21, 1978, appellant, North Penn Water Authority applied for a special exception, building permit and a use and occupancy permit from Worcester Township, Montgomery County, to construct a ten foot by ten foot pumphouse on a small tract of land leased from Philadelphia Electric Company and to use a well previously dug for public water supply. The tract is zoned for agricultural purposes, with other uses permitted by special exception.

Appellant contended that it was entitled to a special exception because the construction and use of its pumphouse and well constituted either a “municipal use” or “utility use” under § §301-B.B.3 and 301-B.B.4 of the Township Ordinance.

On July 26,1978, the Delaware River Basin Commission approved appellant’s pumphouse and well project as part of its comprehensive plan, and on August 4, 1978, the Pennsylvania Department of Environmental Resources issued appellant a water supply permit to operate the pumphouse and well.

Worcester Township denied the requests for a special exception and building and use and occupancy permits, and appeals were taken to the Zoning Hearing Board of Worcester Township. After 15 hearings between August 22, 1978 and March 18, 1980, the zoning hearing board, on May 27, 1980, denied the appeals. This appeal was filed on June 12, 1980. Appellant alleges that the decision of the zoning hearing board was arbitrary, capricious, contrary to law, contrary to the facts and an abuse of discretion.

[359]*359BACKGROUND

A special exception is a conditional use which is permitted only if certain predetermined standards are met: City of Pittsburgh v. Herman, 7 Pa. Commonwealth Ct. 243,298 A. 2d 624 (1973). The zoning ordinance of Worcester Township provides for the following uses when authorized as a special exception:

Section 301-B. . .

B.3. Passenger station for public transportation, telephone central office, and other public utility use directly related to and necessary for services within the township. (Emphasis added.)

B.4 Municipal Use.

The Zoning Ordinance of Worcester Township sets forth the standards for special exception:

Section 1802. Standard for Zoning Hearing Board actions.

In any instance where the Zoning Hearing Board is required to consider any of those matters itemized in § 1801, in accordance with the provisions of this Ordinance, the Board shall, among other things:

A. Consider the suitability of the property for the use desired. Assure itself that the proposed changes are consistent with the spirit, purpose and intent of the Zoning Ordinance.
B. Determine that the proposed change will not substantially injure or detract from the use of neighborhood property or from the character of the neighborhood and that use of the property adjacent to the area included in the proposed change of plan is adequately safeguarded.
C. Determine that the proposed change would serve the best interest of the township, the conve[360]*360nience of the community (where applicable) and the public welfare.
D. Consider the effect of the proposed change upon the logical efficient and economical extension at public services and facilities such as public water, sewers, police and fire protection and public schools.
E. Determine that any sewage or waste resulting from the proposed use will and can be satisfactorily disposed of, and if such use is to be disposed of on an on-lot basis, the size of the lot and nature of the sod are such as wdl insure satisfactory sanitary subsurface disposal.
F. Consider the effect of the proposed change or improvement in creating any run-off, water or drainage problem that might be injurious to adjacent or nearby properties or create an expense for the township.

I. Impose such conditions, in addition to those required, as are necessary to assure that the intent of the Zoning Ordinance is complied with, which conditions may include but are not limited to, harmonious design of buddings, planning and its maintenance as a site or soundscreen and minimizing the noxious, offensive, or hazardous elements, adequate standards of parking and sanitation.

SCOPE OF REVIEW

In this case, the scope of review is limited to whether the board committed an error of law or abused its discretion: Dewald v. Board of Adjustment, City of Pittsburgh, 13 Pa. Commonwealth Ct. 303, 320 A. 2d 922 (1974); Campbell v. Zoning Hearing Board of Plymouth Township, 10 Pa. Commonwealth Ct. 251, 310 A. 2d 444 (1973).

Once an applicant for a special exception proves that the proposed use is permitted by the zoning [361]*361ordinance, he is entitled to the special exception, unless the requested use would be detrimental to the public health, safety or welfare: Evans v. Zoning Hearing Board of Easttown Township, 40 Pa. Commonwealth Ct. 103, 396 A. 2d 899 (1979).

In reviewing the record, the court finds that appellant has met all of the terms and conditions required for a special exception. The appellees have failed to establish that the proposed use would adversely affect the health, safety or welfare of the community.

UTILITY USE

All parties admit that appellant’s use is a utility use. The issue is whether such use is “directly related to and necessary for services within the Township” as provided in §301-B-B.3.1

The zoning hearing board found in the negative. This finding was in error.

The record shows that appellant, North Penn Water Authority, presently serves residents in Worcester Township and also, residents in other boroughs and townships. The well in question is the only well dug by appellant in the township.

In reaching its decision, the zoning hearing board concluded that appellant’s use was not “directly” related to services within the township because appellant serviced other municipalities. Inits opinion, the zoning hearing board said:

. . .we interpret the word “directly” to mean totally, with no deviations, and not merely partially. Opinion of Zoning Hearing Board, p. 20.

The interpretation of the zoning hearing board is [362]*362incorrect. Not only does the word “directly” not mean “totally,” but the fair interpretation of §301-B-B.3 of the ordinance does not require that all services of any utility exist and operate exclusively for and within the township.

The creation of the North Penn Water Authority under the Municipality Authorities Act, 53 P. S. § 301 et seq. by seven municipalities, including Worcester Township, indicates that each member municipality intended that the services of the North Penn Water Authority would accommodate a geographical area broader than the bounds of any one township or borough. The court finds that the well and pumphouse of the North Penn Water Authority is directly related to services within Worcester Township.

Appellant also contends that the installation of the pumphouse is “necessary for services within the Township,” citing testimony that some wells within the township have become polluted and the need for alternative water supply. The court finds that the proposed use is necessary for services within the township.

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Related

Dewald v. BD. OF ADJUST., CITY OF PGH.
320 A.2d 922 (Commonwealth Court of Pennsylvania, 1974)
Root v. Erie Zoning Board of Appeals
118 A.2d 297 (Superior Court of Pennsylvania, 1955)
Borden Appeal
87 A.2d 465 (Supreme Court of Pennsylvania, 1952)
Zoning Hearing Board v. Konyk
290 A.2d 715 (Commonwealth Court of Pennsylvania, 1972)
Hatfield Township v. Lansdale Municipal Authority
403 Pa. 113 (Supreme Court of Pennsylvania, 1961)
City of Pittsburgh v. Herman
298 A.2d 624 (Commonwealth Court of Pennsylvania, 1973)
Campbell v. Zoning Hearing Board
310 A.2d 444 (Commonwealth Court of Pennsylvania, 1973)
Evans v. Zoning Hearing Board
396 A.2d 889 (Commonwealth Court of Pennsylvania, 1979)
In re Appeal of Klock
415 A.2d 705 (Commonwealth Court of Pennsylvania, 1980)
Strasburg Associates v. Newlin Township
415 A.2d 1014 (Commonwealth Court of Pennsylvania, 1980)

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Bluebook (online)
24 Pa. D. & C.3d 357, 1981 Pa. Dist. & Cnty. Dec. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-penn-water-authority-v-zoning-hearing-board-pactcomplmontgo-1981.