Opinion
January 11, 1962.
March 13, 1962.
Municipalities — Zoning — Practice — Appeal to court of common pleas — Scope of review — Appellate review.
1. On an appeal from a zoning board of adjustment decision to a court of common pleas, in which the court does not take any additional testimony, the only questions properly before the court of common pleas are whether (1) the board of adjustment committed an error of law or (2) a flagrant abuse of its discretion in reaching its decision. [388]
2. It was Held, in the circumstances, that the court below had correctly determined that a board of adjustment had not manifestly abused its discretion or committed an error of law in refusing a request for a special exception. [388-9]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
Appeal, No. 45, Jan. T., 1962, from order of Court of Common Pleas of Montgomery County, April T., 1960, No. 28, in the matter of appeal of Valley Forge Industries, Inc. from decision of Zoning Board of Adjustment of Plymouth Township. Order affirmed.
Appeal by property owner from decision of zoning board of adjustment refusing to grant special exception.
Order entered affirming board, opinion by GROSHENS, J. Property owner appealed.
Samuel H. High, Jr., with him High, Swartz, Roberts Seidel, for appellant.
Joseph J. McGrory, for appellee.
This is a zoning appeal by plaintiff from the denial of a special exception to erect a building 40' x 100' and to pave the remainder of its lot so that it could store asphalt trucks. Plaintiff's property, approximately 140' x 140', is in a Commercial Zone and the Zoning Ordinance of the Township permits the requested use when authorized by a special exception under certain safeguards forth in the ordinance. The lower Court did not take any additional testimony and therefore the sole question properly before it was whether the Board of Adjustment had committed an error of law or a manifest abuse of its discretion: Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681; Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280; Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587.
The grounds stated by the Board and approved by the Court were: "It is the opinion of the Board that the requested use for which a special exception is requested would be detrimental to the appropriate use of adjacent residential property, because of dust, noise and odor; that the requested use would cause undue congestion of vehicular truck traffic and would endanger the safety of persons or property by improper location or design of facilities for ingress and egress."
The appellant contends that the Board manifestly abused its discretion because traffic would only be slightly increased and the noise, dust and odor was only a possibility.
This Court cannot measure the degree or extent of noise, dust, odor or traffic. The evidence was carefully analyzed in the able opinion of Judge GROSHENS. It will suffice to say that there was sufficient evidence to sustain the findings of the Board and we can find no abuse of discretion.
Order affirmed.