Citation:

Beers v. Zoning Hearing Bd. of Towamensing Twp., 933 A.2d 1067 (Pa. Commw. 2007).

Summary:
A township ordinance must be interpreted to give effect to all provisions and accordingly a Zoning Hearing Board’s interpretation of a Township Ordinance is entitled to great weight and deference.
Case Details:

Landowners owned two tracts of property in the Township.  One tract was a seven acre, vacant lot in a residential zone, and the other tract was a 128 acre plot in a non-residential zone.  In March 2006, the Township became aware that the landowners were excavating and removing shale from the seven acre tract, which involved the use of heavy machinery.  The shale was hauled to the 128 acre tract for use in a construction project.  The Township issued two enforcement notices:  one involving the expiration of a zoning permit for construction and the other for extracting soils without a required permit.  In April 2006, landowners filed an appeal with the ZHB for an interpretation of the zoning provisions the Township sought to enforce upon them.  The Township issued a new enforcement notice to the landowners for a violation of sections 405 (G9) and 406 (G9) of the Towamensing Township Ordinance of 1991.

At issue was the interpretation of Section 405 in conjunction with Section 406.  Section 405 prohibits “extractive operations” in a residential zoning district.  However, section 406 states that “extraction for construction-related or development purposes shall be permitted in any district.”  Landowners argued that section 406 permitted extraction activity in any district so long as it is related to the construction on any property.  The ZHB concluded that section 406 is limited to instances where the extraction and use of the extracted material for construction or development occurs on the same property.

The trial court reversed the ZHB, finding that when doubt exists as to the language in a zoning ordinance, the language should be interpreted in favor of Landowners and against any implied extension of the restriction.  The Township appealed, arguing that the landowners’ interpretation of section 406 allowed the exception to swallow the rule in section 405.

Commonwealth Court acknowledged that the Ordinance does not contain express language limiting extraction activity to instances where construction occurs on the same property.  The trial court did not properly apply the abuse of discretion standard and failed to give the ZHB’s interpretation of Ordinance sections 405 and 406 the great weight and deference to which it is entitled.  Pursuant to the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1921-22, the Ordinance must be interpreted to give effect to all its provisions and it must be presumed that the Township did not intend an unreasonable or absurd result.  The Court reversed the trial court, holding that sections 405 and 406 prohibit excavation on property in a residential district except when the excavation is related to construction or development on that same property.

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