Opinion
Argued October 11, 1974
December 9, 1974.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Special exception — Supermarket.
1. In a zoning case where the court below took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board abused its discretion or committed an error of law. [49-50]
2. A zoning board does not abuse its discretion in determining that a supermarket with an area of thirty thousand square feet is not entitled to a special exception under a zoning ordinance which permits a special exception for a grocery store of less than five thousand square feet or other similar retail business. [49-50]
Argued October 11, 1974, before Judges CRUMLISH, JR., KRAMER and WILKINSON, JR., sitting as a panel of three.
Appeal, No. 390 C.D. 1974, from the Order of the Court of Common Pleas of Lehigh County in case of Nathan L. Berk and Henrietta Berk v. Zoning Hearing Board, Township of Whitehall, No. 104 September Term, 1973.
Application to Zoning Hearing Board, Whitehall Township for special exception. Application denied. Applicants appealed to the Court of Common Pleas of Lehigh County. Appeal denied. BACKENSTOE, J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William H. Eckensberger, Jr., for appellants.
F. Paul Laubner, with him Harry A. Kitey, for appellee.
Martin J. Karess and Charles J. Fonzone, with them Walker, Thomas, Karess, Lipson Zieger, for intervening protestants.
This appeal is from an order of the Court of Common Pleas of Lehigh County, dated February 26, 1974, affirming the Township of Whitehall Zoning Hearing Board's refusal to grant a special exception for the purpose of constructing and operating a 30,000 square foot supermarket in a C-1 Neighborhood Commercial zoning district. A grocery store or meat market with a total floor space of less than 5,000 square feet and "other similar retail business or service establishments which supply commodities or perform services primarily for residents of surrounding neighborhoods" are permitted by special exception in a C-1 zone. The zoning hearing board determined that the proposed supermarket did not constitute a "similar retail business," and accordingly refused to grant a special exception. After a careful review of the record and the applicable law, we find neither an abuse of discretion nor an error of law in the Zoning Hearing Board's determination, and so we affirm. In so doing, we adopt the able opinion of Judge JOHN E. BACKENSTOE of the court below which is reported at 35 Lehigh L. J. 461 (1974).
Order affirmed.