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HomeMy WebLinkAbout2007-4195 Civil SPECIALTY PAINTS & COATINGS, : IN THE COURT OF COMMON PLEAS OF INC., : CUMBERLAND COUNTY, PENNSYLVANIA APPELLANT : : V. : : DICKINSON TOWNSHIP AND : THE DICKINSON TOWNSHIP : BOARD OF SUPERVISORS, : APPELLEES : 07-4195 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., November 20, 2007:-- Specialty Paints & Coatings, Inc., has an equitable interest in No. 10 Kuhn Drive, Dickinson Township, Cumberland County, Pennsylvania, for which they filed an June 18, 2007 application for a conditional use. On , the Dickinson Township Board of Supervisors, rejecting Specialty Paints’ position that its proposed use of the property constituted “Business services” as defined by the Zoning Code of Dickinson Township, denied the requested conditional use. Specialty Paints filed this appeal which was October 3, 2007 briefed and argued on . Having not taken additional evidence, our scope of review is whether the Board of Supervisors committed an error of law or Great Valley School District v. Zoning Hearing Board of abused its discretion. See East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An abuse of discretion Id. is where findings are not supported by substantial evidence. Substantial evidence is such relevant evidence which a reasonable mind might accept as adequate to Id. support a conclusion. 07-4195 CIVIL TERM No. 10 Kuhn Drive is a 1.63 acre tract on which there is a 6,600 square foot building. It is in a Medium Density Residential Office District under the Zoning Code of Dickinson Township. The Code provides: [T]he purpose of the Medium Density Residential Office (MDR-O) District is to provide reasonable standards for harmonious development, development of residences, apartments, townhouses, professional offices, financial institutions; and other uses which are compatible with medium and high density housing; to provide for public convenience and avoid traffic congestion problems. Some of the permitted uses in a MDR-O District are single-family detached dwellings, duplexes, townhouses, individual mobile homes, churches, home occupations, and government buildings. Conditional uses, when authorized by the Board of Supervisors, include “Business services.” The Code defines “Business services” as: A business which provides a specialized, specific, non-industrial service used to compliment a commercial enterprise and shall also include accessory retail, repair or assembly which pertains specifically to the business. The business of Specialty Paints involves retail sales of stains (ready-mixed or custom-mixed) and color coatings for cabinetry, wood stairways and wood trim, metal paint coatings, sealers, and top-coat finishers to large residential housing builders, “tract builders” and others. Most of the retail sales are comprised of stains and color coatings matched by the enterprise to customer samples. The use also involves, to a minor degree, the ancillary and accessory sales and repairing of spray painting equipment. Stain color matching is performed on the job site, generally by visual -2- 07-4195 CIVIL TERM examination of a wood sample. Solid color matching is performed on the job site with the use of a spectrograph. All products sold are for spray application, and the sale and repair of spray equipment is a smaller, accessory function of the enterprise. Use of the premises would include bulk product storage, and a forklift would be used in the operations. In addition to an office area (25%), the interior of the premises would be used for a color matching area (7%), an equipment repair area (23%) and 45% would be used for a stockroom for stains, color coatings, sealers and top coats. Stain and painting materials would be shipped to the premises in containers ranging in size up to 55 gallon drums. The stains, paints and other products would be delivered by tractor trailers at a frequency of 3.26 to 6 times per week. Deliveries are generally by pallets and are unloaded by forklift. Other deliveries are by UPS step-vans on a daily basis. Product deliveries would be made from the premises to customers in company vehicles, generally once per day. Business hours would be from 7:30 a.m. to 4:30 p.m. weekdays. Less than 1% of sales would be from “walk-ins.” There would be three full- time employees and one part-time employee. Approximately 25% of the product sales are “stock” factory mixtures. Ninety percent of gross revenues are from repeat customers. The company performs trouble-shooting for customers having difficulty with product applications. All trouble-shooting takes place off-premises at customer facilities. The company charges for time incurred in color-matching as customers expect to purchase a color or stain tone product that matches the samples they provide. -3- 07-4195 CIVIL TERM In rejecting Specialty Paints’ position that its proposed use of 10 Kuhn Drive constitutes “Business services,” the Board of Supervisors concluded: -4- 07-4195 CIVIL TERM What the evidence demonstrates is that the Applicant seeks, as its name implies, to operate a paint and stain products sales business. The described use is not a business service. The Applicant is a retailer of stain and color coating products, primarily custom blends, with accessory sales and repair of spray painting equipment. Gross revenues to the enterprise are derived substantially from the sale of stains and color , the Applicant suggests that it is a service coatings. Nevertheless because it blends, on-site, liquid stain and paint materials to achieve customer-desired color or tone effects. To the contrary, blending activity is more appropriately described as an industrial use and not a service. Section 305-5 of the Code defines “industry” to be: “[T]he manufacturing, compounding, processing, assembly, or treatment of In its blending and mixing materials, articles, or merchandise.” processes, the Applicant compounds and processes different liquid coatings and is engaged in manufacturing a final product. The word “manufacture[ing] is not defined in the Code, but commonly means: “the making of goods and articles by hand … or by machinery … to work into usable form.” Webster’s New World College Dictionary, Third Edition, p. 824. Alternatively, to the extent the mixing process might be considered a service, and the Board determines that it is not, to qualify as a business service the Code requires that it be a “nonindustrial service.” See section 205-5 definition of Business Services. The proposed use is contra the definition of industry found in the Code. (Emphasis added.) * * * The Applicant’s business is primarily and substantially the filling of retail customers’ stain and coating orders, whether by stock or custom mixtures, from inventory stored at the Premises. The principal portion of its gross revenues is derived from the sale of products that meet its customers’ specific requirements. Its business is generated by an ability to sell stain and coating products of a tone and color demanded by its customers. The Premises will be used primarily for the storage of stain and paint products, whether for mixing on-site for ultimate retail, or received into inventory for sale “as is,” and the shipping of those products. It is proposed to be used as paint and stain products distribution and mixing center for the storage, compounding, blending, processing, selling and shipping of product inventory. -5- 07-4195 CIVIL TERM the application proposes a retail sales and Succinctly put, distribution operation with an inherent industrial component. The repair of spray equipment is an insignificant part of the operations and is accessory to the principal use. It is not a business service and fails to qualify as a conditional use under Section 305-13C(3) of the Code. (Footnote omitted.) (Emphasis added.) In its brief, the Board of Supervisors concludes by stating that the proposed use by Specialty Paints of 10 Kuhn Drive “is not a business service, but a retail sales distribution and warehousing enterprise.” Specialty Paints maintains that the Board of Supervisors erred as a matter of law in concluding that the proposed use of the property is not “Business services,” an allowable conditional use under the Zoning Code. Specialty Paints argues that this legal conclusion ignores the specialized and specific nature of the proposed business which is designed to specifically compliment a specific commercial enterprise, namely the wood and metal manufacturing business. We recently dealt with a case where the applicant sought a conditional use based on Business services for a building at No. 8 Kuhn Drive, Dickinson Township, 1 which is next to the subject No. 10 Kuhn Drive. In that case we noted: What the evidence shows is that the Palmers seek to operate a sales business. Their customers will be detailing shops and automobile dealerships. The sale of product for the detailing and care of vehicles will be made off the business premises by employees who will drive relatively small trucks filled with product to customer locations where, in conjunction with sales, they will provide instruction and training in product use. The business premises in Dickinson Township will be used to park the trucks in the bay where they will be loaded with product that has been previously __________ 1 Palmer v. Dickinson Township, 07-0728 Civil Term (order and opinion filed on April 11, 2007). -6- 07-4195 CIVIL TERM delivered on tractor trailers, and stored inside. A few employees will work at the premises. Training classes in the use of the detailing products will be conducted inside the premises once, or at most, a few days each month. In finding that the Dickinson Township Board of Supervisors did not make an error of law or abuse its discretion in denying Palmers’ application for conditional use approval, we concluded: The Palmers’ business is retail sales of product off the business premises. Sales are the business, not an accessory use of the premises. The Palmers are not proposing to provide detailing services on or off their The business premises are to be used for storage of premises. merchandise and the loading of that merchandise onto trucks which are kept inside the premises for transport and sale at customer locations. The definition of a “warehouse” in Merriam Webster’s Collegiate Dictionary, Tenth Edition, is “a structure or room for the storage of merchandise of commodities.” That is what the proposed use of the business premises is, or as the Board of Supervisors stated in their “[a] products distribution center for the storage and decision: shipping of product inventory being sold at retail to outside customers.” (Footnote omitted). (Emphasis added.) To constitute “Business services” under the Zoning Code of Dickinson Township, the business must provide a specialized, specific, non-industrial service used to compliment a commercial enterprise. “Service” is defined in Merriam Webster’s Collegiate Dictionary, Tenth Edition, to include “the work performed by one that 2 sub judice, serves.” In the case what the substantial evidence shows is that Specialty __________ 2 Malt Beverages Distributors Association v. Pennsylvania Liquor Control In Board, 918 A.2d 171(Pa. Commw. 2007), the Commonwealth Court of Pennsylvania stated that: In reading the plain language of a statute, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” 1 Pa.C.S. 1903(a). -7- 07-4195 CIVIL TERM Paints will sell its product off the business premises that are specially prepared on the business premises. Its primary use of No. 10 Kuhn Drive will be to mix liquid coatings into unique products that meet the special requirements of its industry customers. The coatings will be received from its suppliers, mixed as specified, and then delivered to Palmer customers. Unlike the facts in , where the primary proposed use of No. 8 Kuhn Drive was for storage of merchandise to be sold off the premises for the detailing of vehicles, the primary use of No. 10 Kuhn Drive will be to provide a specialized, specific service to compliment a commercial enterprise which is to custom mix liquid coatings to customer specifications. When the Board of Supervisors concluded otherwise that was an error of law. However, the Board alternatively concluded that if the mixing process is considered a business service it is not a non-industrial service. To constitute business services under the Zoning Code, a specialized, specific service must be a non- industrial service. The Code defines “industry” as: “[T]he manufacturing, compounding, processing, assembly, or treatment of materials, articles, or merchandise.” “Compound” is defined in Merriam Webster’s Collegiate Dictionary, Tenth Edition, to include, “to put together (parts) so as to form a whole : COMBINE ‹~ingredients›,” and “composed of or resulting from union of separate elements, ingredients, or parts.” That is what the mixing of liquid coatings is; therefore, it is an industrial service as defined by the Dickinson Township Zoning Code. The Board of Supervisors did not make an error of law in concluding that the proposed use of No. 10 -8- 07-4195 CIVIL TERM Kuhn Drive is not for business services. The application for a conditional use was properly denied. ORDER OF COURT IS AND NOW, this day of November, 2007, this land use appeal, DISMISSED. By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Special Paints & Coatings, Inc. Edward L. Schorpp, Esquire For Dickinson Township :sal -9- SPECIALTY PAINTS & COATINGS, : IN THE COURT OF COMMON PLEAS OF INC., : CUMBERLAND COUNTY, PENNSYLVANIA APPELLANT : : V. : : DICKINSON TOWNSHIP AND : THE DICKINSON TOWNSHIP : BOARD OF SUPERVISORS, : APPELLEES : 07-4195 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT IS AND NOW, this day of November, 2007, this land use appeal, DISMISSED. By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Special Paints & Coatings, Inc. Edward L. Schorpp, Esquire For Dickinson Township :sal