Opinion
June 13, 1977.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Statutory ambiguities — Legislative intent — Ordinance headings — Special provisions — Oil storage.
1. In a zoning case where the lower court took additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the court below abused its discretion or committed an error of law. [506]
2. In resolving ambiguities in a statute the court must ascertain and give effect to the intent of the enacting legislative body. [506]
3. In construing an ordinance, section headings are of aid but are not controlling. [506]
4. Special provisions of a statute shall control where they conflict with general provisions. [506-7]
5. Where a zoning ordinance identifies an area generally as a mining district but a special provision permits underground storage of oil in the district, it is not improper to conclude that a property owner could install an underground oil storage tank in the district without obtaining special permission even though the tank will be generally commercial and unrelated to mining. [507]
Judge CRUMLISH, JR. concurred in the decision.
Submitted on briefs, April 4, 1977, to Judges CRUMLISH, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1183 C.D. 1975, from the Order of the Court of Common Pleas of Luzerne County in case of Appeal of Anthony Lonzetta from Decision of the Zoning Hearing Board of Hazle Township, No. 3626 of 1975.
Application to the Hazle Township Zoning Hearing Board for zoning permit. Application denied. Applicant appealed to the Court of Common Pleas of Luzerne County. Order reversed. PODCASY, J. Township appealed to the Commonwealth Court of Pennsylvania. Held: affirmed.
Thomas L. Kennedy, for appellant.
James V. Senape, Jr., for appellee.
Anthony Lonzetta, who operates Lonzetta Plumbing and Heating Company, wants to install a 10,000-gallon underground oil storage tank on property he owns in Hazle Township, Luzerne County. The Township's resistance has engendered this zoning case.
Lonzetta's property is situate within an area zoned "Mining District" under the Township of Hazle Zoning Ordinance. When Lonzetta advised the Township zoning officer of his intention to install the underground storage tank, he was informed that, because his proposed use was essentially a commercial use not related to mining, approval of the Zoning Hearing Board of Hazle Township (Board) was required. Lonzetta suggested that, because the ordinance permitted "Extraction and Underground Storage of Gas and Oil" without Board approval, his proposed use did not require approval of the Board. Upon insistence of the zoning officer, he nevertheless applied for Board permission.
The ordinance provides in pertinent part: 4.07 "M-1" — Mining Districts Deep Mining and Strip Mining of Coal Quarrying of Rock Excavation of Sand and Gravel Uses Excavation of Peat Moss Permitted Procession of Materials Mined, Quarried, Excavated or Without Extracted Board Storage of Materials Mined, Quarried, Excavated or Approval Extracted Railroad Yards Contractors Yards Utilities Extraction and Underground Storage of Gas and Oil Accessory Uses to the Above .................................................. Public Uses Semi-Public Uses Sanitary Landfills Uses Outdoor Advertisements Requiring Residential Uses Board Commercial Uses Approval Industrial Uses Accessory Uses to the Above
A hearing was held before the Board on the application of Lonzetta for a special exception. When the application was denied, Lonzetta appealed to the Court of Common Pleas of Luzerne County. After taking additional testimony, the court concluded that the proposed use did not require Board approval, and it accordingly reversed the order of that body. The Township appealed to this Court.
In its decision, the lower court correctly noted that, where additional evidence is taken, the court is not to review the action of the Board but rather to decide the case on the merits. On appeal from the lower court's decision, the issue before us is whether the court manifestly abused its discretion or committed on error of law. Appeal of Benech, 28 Pa. Commw. 415, 368 A.2d 828 (1977). We hold that it did neither.
The instant dispute involves an ambiguity in the zoning ordinance: whether the underground storage of oil in the Mining District is permitted without approval because it falls within the "Extraction and Underground Storage of Gas and Oil" provision or whether the use requires approval because it is a commercial use not directly related to mining.
When an ordinance is doubtful or ambiguous in meaning, it must be construed according to recognized rules of construction, in order to determine and give effect to the legislative intention expressed in it. See Marple Township v. Lynam, 151 Pa. Super. 288, 30 A.2d 208 (1943); Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(a). See generally 6 E. McQuillan, Law of Municipal Corporations § 20.44 (3rd ed. 1969 Supp. 1976). We therefore note that headings prefixed to a section of an ordinance do not control but may aid construction, see 1 Pa. C.S. § 1924; cf. Wiley v. Umbel, 355 Pa. 206, 49 A.2d 371 (1946) (application to statute relating to municipalities), and that, where a conflict between a special provision and a general provision is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, see 1 Pa. C.S. § 1933; cf. Wiley, supra.
In applying these rules to the instant facts, we conclude that it was neither a manifest abuse of discretion nor an error of law to decide that approval of Lonzetta's proposed use was not required. The heading of the applicable section of the ordinance, "Mining District," does not control the types of uses allowed without Board permission. Moreover, the special provision permitting underground storage of oil must be deemed to prevail even if such storage is generally commercial. Finally, we note that other uses which are commercial in general and which are not on their faces directly related to mining are specifically permitted in the district without Board approval. Thus, no error or abuse of discretion was committed in determining that the legislative body intended to permit underground oil storage without approval even if such storage was commercial and not directly related to mining.
See note 1 supra, particularly "Contractors Yards" and "Utilities."
Order affirmed.
Judge CRUMLISH, JR. concurs in decision.
ORDER
AND NOW, this 13th day of June, 1977, the order of the Court of Common Pleas of Luzerne County in the above captioned matter, dated July 23, 1975, is hereby affirmed.