Opinion
Argued September 12, 1988.
December 8, 1988.
Argued September 12, 1988, before Judges DOYLE, BARRY and McGINLEY, sitting as a panel of three.
Appeals Nos. 2466 C.D. 1987 and 2478 C.D. 1987, from the Order of the Court of Common Pleas of Berks County, in the case of Burgoe Realty Co., Inc. v. Bern Township Zoning Hearing Board and Township of Bern, No. 409 April, 1986.
Property owner filed applications with Bern Township for approval of subdivision plan of property, for variance, special exception, interpretation of various provisions of zoning ordinance and a challenge to constitutionality of ordinance. Applications denied. Owner appealed to the Court of Common Pleas of Berks County. Board reversed. Permit approved for all uses except temporary storage of hazardous waste. ESHELMAN LIEBERMAN, J.J. Owner and Township appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Charles E. Zaleski, Tive, Hetrick Pierce, P.C., with him, Mervin A. Heller, Baskin, Mendelsohn, Leisawitz, Heller Abramowitch, for appellant/appellee, Burgoe Realty Co., Inc.
Scott L. Huyett, for appellee, Zoning Hearing Board of Bern Township.
Stephen G. Welz, for appellee/appellant, Township of Bern.
Burgoe Realty Co., Inc. and the Township of Bern have both appealed from an order of the Court of Common Pleas of Berks County which reversed in part and affirmed in part a decision of the Bern Township Zoning Hearing Board (Board).
Burgoe filed an application for approval of a subdivision plan with the Township. At the same time, it filed an application with the Board seeking a variance, a special exception, an interpretation of various provisions of the Township's zoning ordinance and a challenge to the constitutionality of that ordinance on the basis of exclusionary zoning, thereby entitling it to a zoning permit. Burgoe proposed that its property be used by Clements Waste Services, Inc. as a recycling facility and a transfer station for solid waste. It was also proposed that Clements would temporarily store hazardous waste in parked trucks on the property on a short term basis. The Board denied Burgoe's application in all respects.
Burgoe then filed an appeal with the Court of Common Pleas of Berks County. Without taking additional evidence, the court reversed the Board and approved the zoning permit for all uses except the temporary storage of hazardous waste. In that respect only, the court affirmed the Board. Both parties have appealed.
In its appeal, Burgoe argues that (1) the Board's decision denying the zoning permit for temporary storage of hazardous wastes was contrary to the provisions of the zoning ordinance; (2) if such use was not permitted, the ordinance is unconstitutionally exclusionary; and (3) the Township lacked the authority to regulate such activity. In the appeal of the Township, it is argued that the Board properly denied the zoning permit because (1) Burgoe failed to present specific evidence showing that the proposed use met the dimensional requirements of the ordinance and (2) Burgoe failed to show compliance with the ordinance's performance standards. All of these issues were raised before the trial court and ably disposed of in the comprehensive opinion of the Honorable CALVIN LIEBERMAN. As a result, we will affirm on the bases of that opinion. Burgoe Realty Co., Inc. v. Bern Township Zoning Hearing Board, ___ D. C. 3d ___ (1987).
ORDER
NOW, December 8, 1988, the order of the Court of Common Pleas of Berks County at No. 409 April 1986, dated September 28, 1987, is hereby affirmed.
Judge MacPHAIL did not participate in the decision in this case.
I agree with the majority opinion except to the extent that it concludes that overnight parking of hazardous waste is not incidental to the principal use of recycling and transfer of solid waste products. I believe that the trial court has construed incidental use too narrowly. It is apparent that the operation in question involves the transportation of solid waste. Transportation and parking go hand in hand and certainly where an industrial or commercial use is concerned, parking for some period of time is to be anticipated. Thus, I believe that the overnight parking of hazardous waste is incidental to the principal use in question here.