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HomeMy WebLinkAbout99-0621 99-0837 civilRITE AID CORPORATION, APPELLANT Mo ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, APPELLEE AND EAST PENNSBORO TOWNSHIP, INTERVENOR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0621 CIVIL EAST PENNSBORO TOWNSHIP, APPELLANT · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Mo ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, APPELLEE AND RITE AID CORPORATION, INTERVENOR 99-0837 CIVIL IN RE: APPEALS FROM A DECISION OF THE ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDERS OF COURT Bayley, J., July 22, 1999:-- Rite Aid Corporation filed an appeal at 99-0621 Civil Term from a decision of 99-0621 CIVIL 99-0837 CIVIL January 21, 1999, of the Zoning Hearing Board of East Pennsboro Township, denying it a building permit. East Pennsboro Township intervened. East Pennsboro Township filed an appeal at 99-0837 Civil Term from the same decision of the Zoning Hearing Board of East Pennsboro Township. Rite Aid Corporation intervened. The appeals were consolidated for briefing and argument on May 26, 1999, because they are the same case and the facts and issues are intertwined and relevant to both appeals. HISTORY OF THE CASE The national headquarters of Rite Aid Corporation, which primarily operates drugstores throughout the United States, is located on Hunter Lane in East Pennsboro Township, Cumberland County. It is in an O-A (Office-Apartment) District under the zoning ordinance of East Pennsboro Township. The headquarters contains 185,000 square feet of office space, a parking garage and a mechanics building. Rite Aid has been testing the landing and takeoff of helicopters at its headquarters since 1996, and has been landing and taking off helicopters on a regular basis since August 1997. It uses helicopters seven days a week, typically two times a day, sometimes more, between the hours of 7:00 a.m. and 8:30 p.m. including weekends and holidays. It uses these helicopters at its headquarters for the transportation of its executives. The landings at the headquarters were without a license from the Pennsylvania Department of Transportation, Bureau of Aviation, and without a BOCA Fire Code permit from East Pennsboro Township. The Township has adopted the BOCA National Fire Prevention -2- 99-0621 CIVIL 99-0837 CIVIL Code/1990 which in Article 8, F-800.2 states "Before initiating operation of [airports, heliports, helistops and aircraft hangers], a permit shall be obtained from the codes official and any other agency having jurisdiction." On May 11, 1998, Rite Aid received notice from the Bureau of Aviation that it could land and takeoff helicopters on the roof of the parking garage of its headquarters on condition that it make certain modifications to the structure. On June 4, 1998, Rite Aid submitted an application for a building permit to East Pennsboro Township containing detailed engineering specifications to make the modifications to the garage to meet the conditions required by the Bureau of Aviation for it to land and takeoff helicopters. Those modifications involve changes to the structural walls around the landing site, the enclosure of a stairwell, the removal of some railings, the leveling of the landing site, and the enclosure of portions of the property. Rite Aid was issued a heliport license by the Pennsylvania Department of Transportation on June 22, 1998. When Rite Aid filed its application for a building permit on June 4, 1998, the East Pennsboro Township Zoning Ordinance did not specifically allow or disallow a heliport or helistop in any part of the Township. On June 6, 1998, two days after the application for a building permit was filed, East Pennsboro Township published a notice of an intention to adopt an ordinance, No. 594-98, which would expressly prohibit the landing and takeoff of helicopters in the Township except in Industrial Park, Industrial Park Limited and Professional Office zoning districts in the Township. The Township -3- 99-0621 CIVIL 99-0837 CIVIL sent Rite Aid a copy of the proposed ordinance on May 22, 1998. On May 28, 1998, Rite Aid's general counsel sent written comments to the Township concerning the proposed ordinance. When the Township advertised the ordinance on June 6, 1998, the notice set forth that the proposed change would be considered at the next regularly scheduled meeting of the Township commissioners on July 1, 1998. Notwithstanding, the Township commissioners enacted the change at a special meeting on June 24, 1998, notice for which was published the day before on June 23, 1998, which notice did not state the nature of business to be considered at the special meeting. On June 30, 1998, Rite Aid filed a challenge to the change of the new Ordinance No. 594-98, to the Zoning Hearing Board of East Pennsboro Township, attacking its validity on the procedural grounds for failing to provide proper notice of its enactment as required by the Municipalities Planning Code at 53 P.S. Section 10610(a) and (c). On July 9, 1998, the building and zoning officer of East Pennsboro Township denied Rite Aid's building permit application on the sole ground that Ordinance No. 594-98 prohibited a heliportJhelistop in an O-A District. The permit application fee of $224 was refunded to Rite Aid. On August 7, 1998, Rite Aid appealed that denial to the Zoning Hearing Board of East Pennsboro Township. On July 18, 1998, East Pennsboro Township advertised that on August 5, 1998, it would consider Ordinance 594-A-98, the same ordinance as 594-98 which was subject to Rite Aid's validity challenge. On August 5, 1998, the Township commissioners adopted Ordinance No. 594-A-98. 99-0621 CIVIL 99-0837 CIVIL VVhen Rite Aid learned that the Township had corrected the procedural deficiencies in the adoption of the ordinance regarding helicopter facilities in the Township, it withdrew its validity challenge to the Zoning Hearing Board because it was moot. On August 18, 1998, the East Pennsboro Township secretary called Rite Aid's attorney to inform him that the $100 filing fee had not been paid on the appeal that had been filed on August 7, 1998, from the denial of the building permit. The secretary requested that the fee be paid immediately. The attorney drove to the Township building that day but when he arrived he was informed that the appeal was rejected on the advice of the Township solicitor for the nonpayment of the fee. The Township then filed a motion with the Zoning Hearing Board to strike Rite Aid's pending appeal from the denial of the building permit. On September 30, 1998, and December 17, 1998, the Zoning Hearing Board conducted hearings on the merits of Rite ^id's appeal from the denial of the building permit and the Township's motion to strike that appeal. In a decision dated January 21, 1999, the Zoning Hearing Board held that on August 7, 1998, when the appeal had been filed, it was accepted and stamped "received" by the Township secretary, and because it was the practice of the Township generally to accept appeals when filed provided the fee was paid promptly thereafter, that the appeal was timely filed notwithstanding that the filing fee had inadvertently not been paid at that time. However, the Board denied Rite Aid's appeal on the merits. Rite Aid and East Pennsboro Township filed appeals from the decision of the Zoning Hearing -5- 99-0621 CIVIL 99-0837 CIVIL Board.1 THE BOARD'S CONCLUSIONS OF LAW The Zoning Hearing Board made the following conclusions of law. The drafters of the East Pennsboro Township zoning ordinance did not contemplate the use of helicopters prior to the enactment of 594-98. Although the common law of Pennsylvania would permit a zoning board to interpret by analogy to other uses when a particular use is not contemplated, Van Scriver v. Zoning Hearing Board of Adjustment, 396 Pa. 646, 152 A.2d 717 (1959), the zoning ordinance of East Pennsboro Township makes for no such allowance. According to the East Pennsboro Township zoning ordinance, when a particular use is not dealt with by the zoning ordinance due to the fact that the use was not prevalent or well-known at the time the ordinance was enacted, the ordinance requires that the use be reviewed by the township's planning commission. Chapter 27, Part 19, Section 474 of the ordinance states: Whenever in any district established under this ordinance a use is neither specifically permitted nor denied and an application is made by a property owner to the Planning Commission, or to the Building Inspector for a building permit for such use, the Planning Commission shall have the authority to permit the use or to deny the use. The use may be permitted if it tends to conform with permitted uses in the district. The use shall be denied if it is not in conformity with permitted uses in the district. ' On June 21, 1998, Rite Aid had filed a complaint in mandamus with a motion for peremptory judgment against East Pennsboro Township claiming that it was entitled to the issuance of a building permit. On October 21, 1998, an order was entered supported by a written opinion granting the preliminary objection of East Pennsboro Township to the complaint, holding, inter alia, that the question of whether a helistop is a use customarily incidental to plaintiff's use of its property as an office complex was an issue that should be determined by the East Pennsboro Township Zoning Hearing Board, from which any subsequent appeals by any party could be brought before this court. Rite Aid Corporation v. Richard L. Ernest, et al., 47 Cumberland L.J. 297 (1998). -6- 99-0621 CIVIL 99-0837 CIVIL Neither a heliport nor a helistop were permitted uses in an O-A District in East Pennsboro Township prior to the enactment of 594-A-98. Since the use of a heliport or a helistop were not contemplated in the existing ordinance, the applicant was required to seek planning commission approval to determine whether this use was compatible with the other uses in the O-A District. The accessory use doctrine holds that certain general types of real estate usage have a natural and reasonable tendency to lead to certain other more specific uses. McGeehan v. Zoning Hearing Board of Springfield Township, 45 Pa. Commonwealth Ct. 403,407 A.2d 56 (1979). Here, the board has concluded that the use of a heliport is not a natural and reasonable use of commercial office property and, therefore, not an accessory use of an office in the O-^ District. Given the board's determination that Rite Aid was not entitled to a building permit under the law as it existed at the time of its application, there is no need for the board to address the question of whether the township would be entitled to rely on 594-A-98 under the pending ordinance doctrine. The use of helistops and heliports were not totally excluded from the township under the zoning ordinances. The use of a heliport, particularly one contemplating the use of a 9,000 pound jet helicopter, is sufficiently out of the ordinary that the failure to expressly provide for it in the ordinance is not constitutionally unreasonable, particularly when, as in East Pennsboro, the ordinance itself provides a mechanism by which a property owner can have such unusual uses reviewed. Since the applicant never availed itself of its right to have its heliport so approved by the planning commission, but chose instead just to build and operate it, it cannot complain that the ordinance was previously unconstitutionally exclusionary. The exclusion of heliports in a mostly residential township is not a per se unreasonable exclusion. The township and the zoning hearing board should evaluate Rite Aid's application for a building permit as a heliport, not a helistop, as the license it received from PennDOT was for a heliport; the building modifications it requested were pursuant to obtaining that license; and its building permit application failed to mention that it was for either a heliport or a helistop. -7- 99-0621 CIVIL 99-0837 CIVIL ISSUES In East Pennsboro Township's appeal it alleges error from the (1) denial of the zoning hearing board to grant its motion to strike Rite Aid's appeal for lack of the timely payment of a filing fee, and (2) failure of the Board to reach a decision as to whether Ordinance No. 594-A-98 could properly be applied to Rite Aid's application of June 4, 1998. Rite Aid maintains in its appeal that the Zoning Hearing Board erred when it (1) concluded that the use of its property for the landing and the taking off of helicopters at its national headquarters was not an accessory use in an O-A District at the time its permit application was filed on June 4, 1998, which was before Ordinances No. 594-98 and 594-^-98 were advertised and enacted, and (2) decided that the zoning ordinance prohibiting the landing and taking off of helicopters was not exclusionary and therefore valid. SCOPE OF REVIEW Having not taken additional evidence our scope of review is to determine if the East Pennsboro Township Zoning Hearing Board committed an error of law, and whether its findings of facts are supported by substantial evidence. Nascone v. Ross Township Zoning Hearing Board, 81 Pa. Commw. 482 (1984). Substantial evidence means such relevant evidence as a reasonable mind must accept as adequate to support a conclusion. Whary v. Zerbe Township Zoning Hearing Board, 683 A.2d 1294 (Pa. Commw. 1996). Where a Board's findings of fact are unsupported by -8- 99-0621 CIVIL 99-0837 CIVIL substantial evidence, the board has committed a manifest abuse of discretion. In re Appeal of DeBotten, 81 Pa. Commw. 513 (1984). The Board is the judge of the credibility of the witnesses and the weight to be given to their testimony. Roseberry Life Insurance Company v. Zoning Hearing Board of City of McKeesport, 664 A.2d 688 (Pa. Commw. 1995). THE FILING FEE ISSUE Zoning boards are administrative bodies, not judicial bodies. Golla v. Hopewell Township Board of Supervisors, 69 Pa. Commw. 377 (1982). The Municipalities Planning Code at 53 P.S. Section 10617.3 authorizes the charge of reasonable fees with respect to the administration of a zoning ordinance. Id.2 The issue here is whether the Zoning Hearing Board abused its discretion in refusing the motion of East Pennsboro Township to strike Rite Aid's appeal from the denial of the issuance of a building permit when (1) the appeal was filed on time, (2) it was accepted and stamped "received," (3) the person who filed the appeal was not told there was a fee, (4) Rite Aid only received notice of the fee after the appeal period expired, (5) the normal practice of the office would have been to alert the filer immediately of the deficiency and give the filer an opportunity to cure it, (6) Rite Aid was told it could cure the deficiency, and (7) Rite Aid then promptly attempted to cure the deficiency but was prevented from doing so by the solicitor for East Pennsboro Township, not the Zoning Hearing Board. Formerly Section 10618 as set forth in Golla. -9- 99-0621 CIVIL 99-0837 CIVIL We find the review set forth in the brief for the Zoning Hearing Board so persuasive on this issue that we adopt it in toto: First, we believe the facts - even if no broader policy were at stake - compel the result. When Rite Aid's local counsel filed the appeal on August 7, 1998, it was stamped and accepted. No word was then spoken of a missing application fee. Only on August 18, 1998, did counsel learn from the secretary in the township building and codes office that the filing fee had not been paid. After he was told, he immediately went to the office to provide the township with the required fee. Only when he arrived at the township building was he told that the appeal was being rejected. That action was undertaken by the building and zoning office on the advice of the township solicitor. Neither the zoning hearing board members nor their solicitor were apprized of this action. The usual practice of the township with appeal papers filed timely and accepted by the secretary when the filing fee is omitted, is to notify the applicant of the omission and if the fee is promptly paid, the appeal is processed as a timely filed appeal. Upon learning of this, the zoning hearing board solicitor advised the township secretary, the township solicitor and Rite Aid's counsel that this was inappropriate, that the appeal should again be filed and that the issue of whether the appeal was timely filed was a question for the board to determine. Immediately thereafter the appeal was filed with the appropriate payment. The board decided to hear the appeal. This, in the circumstances was entirely appropriate. However, even beyond the specifics of this case, any per se rule as advocated by the Township that a missed filing fee must result in a dismissal, would have a dreadful effect on the perception and reality of 'justice' in zoning hearings. The use of technical glitches or errors that has resulted in a 'gotcha' mentality in the practicing bar has absolutely no place in a zoning hearing room. Zoning hearings are more informal than most administrative hearings. There are no published rules of procedure nor does it have its own clerk's office. One of the greatest challenges that a zoning board has, is maintaining a fair hearing in the face of great community passion. Zoning hearings can quickly decline in civility and dignity. There are many causes for this phenomenon: the territorial imperative seems to bring out the passions of our species when land is an issue. People often represent themselves - often without great knowledge in the law or abilities to articulate their views or understand. -10- 99-0621 CIVIL 99-0837 CIVIL even the relatively simple procedures associated with filing their applications. Applicants and affected neighbors typically have no concept of the rules of evidence - many times squaring off in argument unrelated to the issues at hand. The applicants who come before these boards may have been deeply disappointed by a decision of the code and zoning office. The one weapon in defense of civility and decency in this situation is to help the parties present their cases, accommodate applicants by 'showing them the way,' and explain the reasons for a decision without opening the door to any view that the Board has targeted them for some type of personal mistreatment. Helping them pay the correct filing fee is part of that process. Imagine the devastating impact that a per se 'strike rule' on a missed or incorrect filing fee would have on that effect? One can imagine how a secretary who inadvertently failed to inform one applicant of a fee, but not another, would be viewed! A perse rule would have a corrosive effect on the zoning board's ability to function. It should be rejected. The case of Henning v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver LicenSing, 687 A.2d 20 (Pa. Commw. 1996), cited by East Pennsboro Township, does not support its position. In Henning the facts were: .The Department of Transportation notified Henning on April 21, 1995 that, as a result of his conviction for fleeing a police officer, his license was to be suspended for six months. Henning mailed a notice of appeal of the Department's action to the Prothonotary of the Butler County Court of Common Pleas on May 13, 1995. According to the Court's opinion, however, the Prothonotary returned it to Henning because it did not include a petition for appeal. Henning thereafter refiled his appeal on May 30, 1995. The Common Pleas Court, on November 29, 1995, after a hearing the day before, denied Henning's appeal. In the opinion supporting its order, the Court found that Henning's appeal was untimely and that therefore the Court was without jurisdiction to hear it. The Commonwealth Court of Pennsylvania stated: While appeals from Department decisions suspending licenses are -11- 99-0621 CIVIL 99-0837 CIVIL granted as of right by the Vehicle Code, the procedure for taking appeals is not provided for in that Code. Nor is the procedure for commencing such an appeal governed by the Pennsylvania Rules of Civil Procedure or the Pennsylvania Rules of Appellate Procedure. Moreover, our research has revealed no authority for the proposition that administrative agency appeals filed within the thirty-day period, though incorrect in form, are untimely if not corrected within that period. In fact, the only requisite to perfecting an appeal of which we are aware is that it be accompanied by the appropriate filing fee. Section 1725(a) of the Judicial Code, 42 Pa.C.S. § 1725(a); Department of Transportation v. Sherner, 157 Pa. Cmwlth. 380, 629 A.2d 1063 (1993). In the absence of a prescribed method to commence a statutory appeal, defects in the form of the filing should be amendable and ought not to affect its timeliness. Appeals, though incorrect in form, should be deemed filed as of the date originally submitted, so long as they are accompanied by a filing fee. Accordingly, we conclude that the common pleas court erred as a matter of law in deciding it was without jurisdiction to hear Henning's appeal. The Judicial Code at 42 Pa.C.S. Section 1725(a) referred to in Henning, a case that arose in 1995, was repealed by the Act of 1992, Dec. 14, P.L. 872, No. 140, § 5, effective in 60 days. Notwithstanding, for the purposes of the issue in the case sub judice, the repealed Section 1725(a) authorized fees "If]or the commencement of any matter before any court or district justice and the fees which clerks and officers serving process or enforcing orders shall be entitled to collect for services performed." The appeal in Henning was to the Court of Common Pleas of Butler County. With respect to administrative fees, as contrasted to judicial fees, that are authorized by the Municipalities Code at 53 P.S. Section 10617.3 that may be reasonably charged for the administration of a zoning ordinance, there is no statutory or case authority that would require the Zoning Hearing Board of East Pennsboro Township to strike Rite Aid's -12- 99-0621 CIVIL 99-0837 CIVIL appeal from the denial of the building permit. Thus, not doing so was not an abuse of discretion or an error of law. THE PENDING ORDINANCE DOCTRINE ISSUE Relying on the pending ordinance doctrine, East Pennsboro Township maintains that Ordinance No. 594-A-98 now prohibits Rite Aid from operating a helistop at its headquarters in an O-A Zoning District. In Hill v. Zoning Hearing Board of Chestnuthill Township, 534 Pa. 45 (1993), the Supreme Court of Pennsylvania stated that "Under [the] judicially created [pending ordinance] doctrine, a use established on land after the date when a municipality has publicly declared its intent to consider a particular zoning scheme may be denied the status of legal nonenforcing use after enactment of the zoning ordinance." The Township argues that the pending ordinance doctrine applies because Rite Aid (1) applied for a building permit after having received a copy of the proposed change in the zoning ordinance on May 22, 1998, to which its general counsel had sent written comments back on May 28, 1998, (2) exercised bad faith by operating helicopters in and out of its headquarters since 1996 without a license from the Department of Aviation and a BOCA fire prevention code permit from the Township, and (3) filed an incomplete application for a building permit. In Boron Oil Company v. Kimple, 445 Pa. 327 (1971), the Boron Oil Company, on July 22, 1968, applied to the Borough of Beaver for a building permit for the construction of a gasoline station. Fourteen days previously, the Borough Zoning -13- 99-0621 CIVIL 99-0837 CIVIL Commission had published a legal advertisement of a public meeting to be held on July 24, 1968, to consider a proposed new zoning ordinance that, inter alia, would, if enacted, prohibit Boron Oil Company from using its property for a gasoline station. The new ordinance was adopted on January 14, 1969. It was an outgrowth of the Borough having created a planning commission on April 12, 1966, to consider a new zoning scheme for the Borough, and thereafter having expended substantial effort in revising its existing zoning ordinance. Boron Oil Company argued that the pending ordinance doctrine was inapplicable to its building permit because the doctrine should apply only to those situations where the proposed ordinance has been formally introduced into the Borough Council and Council has scheduled and advertised public hearings. The Supreme Court of Pennsylvania rejected that argument stating: The Borough Zoning Commission advertised a public meeting on the proposed rezoning two weeks prior to appellant's application, and the proposed ordinance was available for public inspection one week prior to the application. These facts taken together constitute a sufficient 'public declaration by the municipality that it intended to rezone the area.' Lhormer v. Bowen, 410 Pa. 508, 511,188 A.2d 747, 748 (1963). We therefore conclude that the proposed ordinance was 'pending' at the date of appellant's application and that the Borough Manager's refusal of a building permit was not improper. The recent case of Mutzig v. Hatboro Board of Adjustment, 440 Pa. 455, 269 A.2d 694 (1970), involved a similar issue of whether or not an ordinance was pending at the date of an application for a building permit. Although this Court was divided in Mutzig, every Justice who participated in that decision expressed the view that an ordinance is pending when a Borough Council has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning. We believe that the same conclusion should prevail where, as here, the Borough Zoning Commission proposed a new -14- 99-0621 CIVIL 99-0837 CIVIL zoning ordinance, makes the proposal open to public inspection, and advertises that the proposal will be discussed at a forthcoming public meeting. (Emphasis added.) In the case sub judice, Rite Aid filed its application for a building permit on June 4, 1998. East Pennsboro Township advertised Ordinance 594-98 prohibiting the landing of helicopters in an O-A Zoning District on June 6, 1998. That ordinance was enacted on June 24, 1998, but is invalid because it was enacted at the special meeting that was advertised the day before on June 23, 1998, with a notice that did not state the nature and business to be conducted, and not on JUly 1, 1998, which was the meeting at which the notice that had been advertised on June 6, 1998, stated that the ordinance would be considered? East Pennsboro Township advertised Ordinance 594-A-98, prohibiting the landing of helicopters in an O-A Zoning District, on July 18, 1998. The Ordinance was enacted on August 5, 1998. Rite Aid's knowledge that a change in the zoning ordinance was being considered by the Township at the time it filed for the building permit does not trigger the application of the pending ordinance doctrine prior to the Township's advertisement of the notice of the intention to rezone. Boron Oil Company v. Kimple, supra. In accord, Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219 (1974); Board of Supervisors of Buckingham Township v. Barness, 33 Pa. Commw. 364 (1978). Because Rite Aid's application for the zoning 3 The Municipalities Planning Code at 53 P.S. Section 10610(a) mandates that there must be at least seven days notice of a meeting at which an ordinance is enacted. -15- 99-0621 CIVIL 99-0837 CIVIL permit was filed on June 4, 1998, before the ordinance that now prohibits landing and takeoff of helicopters in O-A Zoning District was advertised, and even before the invalid ordinance was advertised, the pending ordinance doctrine does not subject Rite Aid to the restrictions in the new ordinance? As to the Township's bad faith argument, Rite Aid applied for the building permit just a little less than a month after it received notice from the Bureau of Aviation that it needed to make modifications to its parking garage, and right after it obtained the engineering specifications for those modifications, in the belief that the use of the parking garage to land and takeoff helicopters was a lawful accessory use to the permitted use of its property as an office complex for its national headquarters, and in the belief that the Township's exclusion of helicopter operations in the entire Township 4 In 1978, the Legislature enacted the Act of 1978-249, 53 P.S. § 11004 2(a), that provided: The landowner shall make a written request to the board or governing body that is to hold a hearing on his challenge. [to a zoning ordinance]. The request shall.., contain a certification that the landowner did not know at the time of the application [i] that the municipality had resolved to consider a particular scheme of rezoning by publication of notice of hearings on a proposed comprehensive plan or proposed zoning ordinance or otherwise, or (ii) that the scheme of rezoning would be inconsistent with the landowner's proposed use; provided that this rezoning scheme had reached sufficient particularity to disclose that, if adopted, it would cure the defect in the zoning ordinance attacked by the substantive challenge. (Emphasis added.) This provision, which would take into consideration what the landowner/applicant knew about a municipality's plans to rezone short of publicly advertising notice of its intent, was repealed by the Act of 1988, Dec. 21, P.L. 1329, No. 170, § 100. -16- 99-0621 CIVIL 99-0837 CIVIL constituted exclusionary zoning. Additionally, despite obviously knowing that Rite Aid was landing and taking off helicopters from its office complex since 1996, the Township did nothing until it raced to pass Ordinance 594-98, albeit illegally, when it learned that Rite Aid wanted to make modifications to its parking garage to comply with the requirements of the Department of Aviation. Furthermore, the fact that Rite Aid had operated its helicopters in and out of its headquarters without a license from the Department of Aviation did not, when the issue arose, prevent the Department from granting the license to Rite Aid to which it was entitled. On these facts there was no bad faith that would change the applicability of the advertising of the intent to rezone as the trigger to the pending notice doctrine as set forth in Buckingham, Casey and Boron Oil. As to the Township's last argument, the application for the building permit filed by Rite Aid on June 4, 1998, contained the engineering specifications for the modifications but did not specifically set forth that the modifications were being made in order to land and takeoff helicopters from the garage. East Pennsboro Township then requested additional information from Rite Aid in support of its building permit. The Township argues that the "incomplete" application for the building permit filed prior to the advertisement of its notice to amend the zoning ordinance to prohibit landing and taking off of helicopters in an O-A zone still triggers the pending ordinance doctrine. The Township, of course, knew that the modifications were being submitted so that Rite -17- 99-0621 CIVIL 99-0837 CIVIL Aid could land and takeoff helicopters from its garage because on July 9, 1998, the building and zoning officer denied the building permit on the sole ground that Ordinance 594-98 prohibited heliports in an O-A District. In Borough of Brookhaven v. Park, 47 Pa. Commw. 223 (1979), Park, on March 9, 1976, submitted building plans for an addition to a commercial building. The addition conformed to the then zoning regulations. A few weeks later the incomplete plans were sent back to Park for him to supply more construction details. On April 19, 1976, the Borough of Brookhaven advertised a new proposed comprehensive zoning ordinance which would prohibit an addition to Park's commercial building. Park's building plans were rejected on May 9, 1977. The Borough argued that because Park submitted incomplete building plans on March 9, 1976, which were returned to him for additional information, the pending ordinance doctrine applied. The Commonwealth Court rejected that argument because Park never withdrew or abandoned his application. Those are the facts of the case sub judice, even if Rite Aid's application for a building permit can be considered as incomplete. Accordingly, the Zoning Hearing Board did not err in not holding that Ordinance 594-A-98 or Ordinance 594-98 were applicable to Rite Aid's application for the building permit filed on June 4, 1998. THE HELISTOP -- HELIPORT ISSUE The physical modifications that Rite Aid seeks in its building permit to make to its parking garage involve only changes to the structure that the Department of Aviation -18- 99-0621 CIVIL 99-0837 CIVIL has determined are necessary for the continued operation of helicopters on the landing pad. Rite Aid has not sought to turn the parking garage into a helicopter service and/or storage facility, i.e., a heliport. It intends to use the parking garage only for landing and taking off of helicopters, i.e., a helistop. The fact that the Bureau of Aviation has issued Rite Aid a "heliport" license is incidental to the issues in this case which involves only the denial of the application for a building permit to make physical modification to the garage? That license enables Rite Aid to fly helicopters into and out of its headquarters using a prescribed approach and departure path from a landing pad on the top of the parking garage, which is all Rite Aid seeks to do. Therefore, the Zoning Board's conclusion that there should be an evaluation of Rite Aid's application for a building permit as a heliport, not a helistop, is not supported by substantial evidence. By granting Rite Aid a license to fly to and to land and takeoff helicopters from the parking garage at its headquarters, the Department of Aviation has determined that such flight operations are safe. That is a decision within the jurisdiction of the Department whose description of a "heliport" in its license does not change the nature of Rite Aid's request for a building permit to the Township. In fact, the record of the Department of Aviation of helicopter facilities in the region lists a "helistop" for Rite Aid at its Hunter Lane headquarters, not a "heliport." It is Rite Aid's use of its property as a helicopter landing 5 The issues in this case do not include whether Rite Aid must obtain a permit under the BOCA fire prevention code to operate a helistop. -19- 99-0621 CIVIL 99-0837 CIVIL pad over which the Township has jurisdiction. The analysis in the opinion of the Zoning Hearing Board as to the difference between a heliport and a helistop is not relevant to the issue of whether Rite Aid can land and takeoff helicopters from the roof of the parking garage as a matter of right. THE ACCESSORY USE ISSUE Rite Aid maintains that the use of its corporate headquarters complex for a helistop is an accessory use under the Zoning Ordinance of East Pennsboro Township in the O-^ District. The ordinance at Section 333, Part 14, which sets forth Permitted Uses in an O-A District, lists as No. 1 "Business, professional, and financial offices and office complexes." (Emphasis added.) The Section does not list a helistop as a permitted use in the district. Nor does it prohibit a helistop. However, Section 333, Part 14 lists as a permitted use an accessory use, which is defined as a "use on the same lot and customarily incidental to any permitted use within a particular zoning district." An accessory use is one that is subordinate and customarily incidental to the principal use of a property and is allowed by right. Sateach v. Beaver Meadows Zoning Hearing Board of Appeal, 676 A.2d 747 (Pa. Commw. 1996). This is because some uses of real estate have a natural and reasonable tendency to evolve into other more specific uses. Klavon v. Zoning Hearing Board of Marlborough Township, 20 Pa. Commw. 22 (1975). Whether a use constitutes an accessory use is a question of -20- 99-0621 CIVIL 99-0837 CIVIL law. Southco, Inc. v. Concord Township, 713 A.2d 607 (Pa. 1988). A zoning ordinance must be interpreted liberally in order to allow the broadest possible use of land. 53 P.S. § 10603.1; Upper Salford Township v. Collins, 542 Pa. 608 (1995). In order for there to be a lawful permitted accessory use of Rite Aid's property as a helistop, that use must be (1) secondary to the principal use of the property as an office complex for its national headquarters, and (2) customarily incidental to the use as an office complex for its national headquarters. See Southco, Inc. v. Concord Township, supra. Rite Aid's national headquarters office complex is the predominant use of the property. A helistop is a use secondary to the principal use of the property. The issue is whether the Zoning Hearing Board erred as a matter of law in concluding that the landing and taking off of helicopters is not a use "customarily incidental" to the national headquarters office complex. No issue similar to this one has been addressed by the appellate courts of Pennsylvania. Those courts, however, have discussed the parameters of what constitutes an accessory use. In AWACS, Inc. v. Zoning Hearing Board of Newtown Township, 702 A.2d 604 (Pa. Commw. 1997), the Commonwealth Court of Pennsylvania held that antennae to provide wireless mobile telephone service were not an accessory use to an apartment building. The principal use of the building upon -21- 99-0621 CIVIL 99-0837 CIVIL which the antennae were to be placed was residential while the antennae constituted a business use. The antennae would serve wireless telephone customers and not necessarily any of the apartment building residents. Therefore, the antennae were neither customarily incidental nor even related to the principal use of the apartment building. In Southco, Inc. v. Concord Township, supra, the issue was whether the wagering component of a restaurant, the "Turf Club," constituted a permitted accessory use. Under the Concord Township's zoning ordinance off-track wagering facilities were neither allowed nor prohibited. A restaurant was a permitted use in the subject zoning district. The Supreme Court of Pennsylvania held that the wagering aspect of the Turf Club was an accessory use to the principal use as a restaurant. The Court noted that the off-track wagering was a form of entertainment similar to other types of entertainment which are customarily incidental to those that other restaurants in the surrounding community offer. The Court stated: As for the 'customarily incidental' prong of the accessory use test, Applicants acknowledge that most restaurants do not have a wagering component .... However, an accessory use may exist even where there is no evidence that a majority, or even a substantial number, of similar properties are engaged in a similar accessory use. See e.g. Thomas v. Zoning Hearing Board, 121 Pa. Commw. 393, 550 A.2d 1045 (1988) (horse stables were a permitted accessory use in Iow residential district even though other stables were not common); Klein v. Township of Lower Macungie, 39 Pa. Commw. 81,395 A.2d 609 (1978) (tennis courts constituted a permitted accessory use even though a majority, or even a substantial number, of residences within the community did not contain tennis courts). -22- 99-0621 CIVIL 99-0837 CIVIL Here, the lower courts found that the wagering component of Applicants' proposed Turf Club constituted an entertainment activity akin to other forms of entertainment provided in restaurants in Concord Township. Such a conclusion is supported by Valley Forge Plaza Associates v. Upper Medon Township Zoning Hearing Board, 141 Pa. Commw. 686, 596 A.2d 1201 (1991). While Valley Forge was not an accessory use case, the Commonwealth Court did find that the addition of off-track betting to a hotel assembly hall did not change the essential nature of the hotel, since the off-track betting was another source of entertainment of the same general character as that normally offered in the assembly hall for hotel patrons. Moreover, as noted above, state regulations envision the wagering component of a Turf Club like that proposed by Applicants as being customarily incidental to a restaurant since the regulations will not allow approval of such a facility without a restaurant. Thus, Applicants produced sufficient evidence to support the 'customarily incidental' prong of the accessory use test. Therefore, since this Court is required to broadly interpret a permitted use by right in a Zoning Ordinance so as to allow a landowner the broadest possible use of the land, we conclude that the Commonwealth Court correctly held that the Board did not err in finding that the wagering component of Applicants' proposed Turf Club constituted a permissible accessory use by right to the restaurant component. (Emphasis added.) In the case sub judice, the East Pennsboro Township Zoning Hearing Board made the following conclusion of law: The accessory use doctrine holds that certain general types of real estate usage have a natural and reasonable tendency to lead to certain other more specific uses. McGeehan v. Zoning Hearing Board of Springfield Township, 45 Pa. Commonwealth Ct. 403,407 A.2d 56 (1979). Here, the board has concluded that the use of a heliport is not a natural and reasonable use of commercial office property and, therefore, not an accessory use of an office in the O-A District. (Emphasis added.) -23- 99-0621 CIVIL 99-0837 CIVIL In concluding that "[t]he use of a heliport is not a natural and reasonable use of commercial office property," the Zoning Hearing Board failed to apply the specific standard set forth in the Township zoning ordinance which defines an accessory use on the same lot as "customarily incidental to any permitted use within a particular zoning district." The record shows that there are several heliports at businesses in nearby Cumberland County municipalities: Harsco in VVormleysburg, which is adjacent to East Pennsboro Township, Book of the Month Club in Upper Allen Township, IBM Distribution, Phico Group and Eichelbergers in Silver Springs Township, and Williams Grove in Monroe Township. While the Zoning Hearing Board noted in its opinion that there are no other helicopter facilities in East Pennsboro Township, that is of little consequence because the Zoning Ordinance before it was amended to allow helicopter operations in Industrial Park, Industrial Park Limited and Professional Office Zoning Districts, did not specifically permit helicopter facilities in any part of the Township. See Thomas v. Zoning Hearing Board of Benner Township, 121 Pa. Commw. 393 (1988). The facts in this case as to whether Rite Aid's helistop is "customarily incidental" to the permitted use of an office complex in an O-A Zoning District, mirror those of New Jersey v. P. T. & L. Construction Company, Inc., 389 A.2d 448 (1978). In P.T. & L. the Supreme Court of New Jersey, reversing a lower court, held that a helistop was a -24- 99-0621 CIVIL 99-0837 CIVIL valid accessory use to a company headquarters' property. P.T. & L. primarily constructed road building projects. The business was located in a Limited Industrial zoning district. The company did business in New York, New Jersey, Connecticut and other eastern states. Two or three times a week P. T. & L.'s executives traveled to various locations to oversee construction projects. Driving to these locations would take from 3 to 3% hours each way. To reduce travel time, P. T. & L. purchased two helicopters and established a helistop on its property. The applicable zoning ordinance did not address helistop or heliport uses but did permit accessory uses "if customarily incident to a permitted use and subordinate to the main permitted use, so long as not violative of any other affirmative requirement." The Supreme Court held: [lit is not essential to the concept of 'customarily incident' that a majority or even a substantial percentage of a given type of principal use is not in fact accompanied by the mooted accessory use. Thus, as already noted, it is not here controlling that most construction firms do not use helipads as incident to the main use of their headquarters' property. The record indicates that this business practice is increasingly coming into vogue and that there is a distinct functional relationship between such use and the business which P. T. & L. conducts as the main use of its property. We think these facts and circumstances suffice to bring the use within the accessory coverage of the ordinance and so hold. (Citations omitted.) Similarly, we hold that the substantial evidence in the case sub judice, shows that there is a distinct functional relationship between the principal permitted use by Rite Aid as an office complex for its national headquarters and the accompanying helistop which is a natural, reasonable evolution for the principal use in light of the -25- 99-0621 CIVIL 99-0837 CIVIL contemporary business practices of such a corporation.6 The reasoning applied by the New Jersey Supreme Court in P.T. & L. applies here and is consistent with the Supreme Court of Pennsylvania's decision in Southco, Inc. v. Concord Township, supra. The East Pennsboro Township Zoning Hearing Board made an error of law in not finding that Rite Aid's landing and taking off of helicopters in an O-A zoning district was customarily incidental to the permitted use of its property as an office complex for its national headquarters. Accordingly, we will reverse the Board and order that it issue Rite Aid its requested permit for the modifications to its parking garage for use as a helistop. 6 Given the evolution of Rite Aid's use of its property for the landing and taking off of helicopters that has been occurring since 1996, and on a regular basis since August 1997, the case of Appeal of Suburban General Hospital, 48 Pa. Commw. 273 (1980), is interesting. After Suburban General Hospital opened in 1972, helicopters delivered emergency patients by landing on the front lawn of the hospital grounds. In April of 1976, the Bureau of Aviation of the Pennsylvania Department of Transportation licensed that site as a heliport. The Hospital then requested a permit to blacktop an area in the front lawn for use as a landing pad. At that time the East Norriton Township Zoning Ordinance lacked any reference to heliports. The Township amended its zoning ordinance on February 8, 1977, to permit heliports as a special exception subject to Bureau of Aviation licensure, fencing, and a 100-foot setback. The Hospital applied for a special exception but the Township Zoning Hearing Board rejected the application on the ground that the Hospital had not met its burden of showing that the operation of a heliport would not be detrimental to the general safety in the area. The Court of Common Pleas of Montgomery County reversed the Zoning Hearing Board "in consideration of the applicant's prior use of the premises as a heliport which was licensed, as well as the absence of any detrimental effect on the community." East Norriton Township appealed and the Commonwealth Court affirmed, holding that "[t]he hospital has established a nonconforming use right," and "[t]he installation of a [landing] pad is more in the nature of a modernization design to provide additional safety" as an expansion of a non-conforming use. -26- 99-0621 CIVIL 99-0837 CIVIL THE PLANNING COMMISSION ISSUE AS TO AN ACCESSORY USE East Pennsboro Township still maintains that Rite Aid was required to seek the approval of the Planning Commission, which it did not, to determine if its proposed use of the parking garage to land and takeoff helicopters was compatible with other uses in an O-A District even if that use is an accessory use permitted in an O-A zone. The Zoning Hearing Board made this conclusion of law: The drafters of the East Pennsboro Township zoning ordinance did not contemplate the use of helicopters prior to the enactment of 594-98. Although the common law of Pennsylvania would permit a zoning board to interpret by analogy to other uses when a particular use is not contemplated, Van Scriver v. Zoning Hearing Board of Adjustment, 396 Pa. 646, 152 A.2d 717 (1959), the zoning ordinance of East Pennsboro Township makes for no such allowance. According to the East Pennsboro Township zoning ordinance, when a particular use is not dealt with by the zoning ordinance due to the fact that the use was not prevalent or well-known at the time the ordinance was enacted, the ordinance requires that the use be reviewed by the township's planning commission. Chapter 27, Part 19, Section 474 of the ordinance states: Whenever in any district established under this ordinance a use is neither specifically permitted nor denied and an application is made by a property owner to the Planning Commission, or to the Building Inspector for a building permit for such use, the Planning Commission shall have the authority to permit the use or to deny the use. The use may be permitted if it tends to conform with permitted uses in the district. The use shall be denied if it is not in conformity with permitted uses in the district. (Emphasis added.) Neither a heliport nor a helistop were permitted uses in an O-A district in East Pennsboro Township prior to the enactment of 594-A-98. Since the use of a heliport or a helistop were not contemplated in the existing ordinance, the applicant was required to seek planning commission -27- 99-0621 CIVIL 99-0837 CIVIL approval to determine whether this use was compatible with the other uses in the O-A District. (Emphasis added.) To the extent the Zoning Hearing Board concluded that Rite Aid needed the approval of the Planning Commission for its helicopter operations as an accessory use it made an error at law because the requirements in Chapter 27, Part 19, Section 474 of the Zoning Ordinance relate to primary uses, not permitted uses. In Sateach v. Beaver Meadows Zoning Hearing Board, 676 A.2d 747 (Pa. Commw. 1996), the Commonwealth Court of Pennsylvania stated: An accessory use is simply a use subordinate to the principal use and which is customarily incidental to the principal use. Once something is defined as an accessory use, it is allowed by right. See Food Corporation v. Zoning Board of Adjustment of the City of Philadelphia, 384 Pa. 288, 291,121 A.2d 94, 95-96 (1956) (If use of land for off-street parking is accessory use customarily incidental to operation of restaurant, applicant is entitled to accessory use as matter of right.) (Emphasis added.) Rite Aid uses its property as a complex for its national headquarters as of right in an O-^ Zoning District. Because the landing and taking off of helicopters at the headquarters is customarily incidental to that principal use, Rite Aid can do so as of right and does not have to seek a determination from the planning commission that the use is compatible with other uses in the District. THE EXCLUSIONARY ZONING ISSUE Notwithstanding our finding that the Zoning Hearing Board erred in holding that Rite Aid could not operate a helistop at its office complex as a permitted accessory use, -28- 99-0621 CIVIL 99-0837 CIVIL we will, as a matter of judicial economy, address Rite Aid's second allegation that the Zoning Hearing Board erred in finding that the East Pennsboro Township zoning ordinance prohibiting the landing and taking off of helicopters was not exclusionary and therefore valid. This challenge is to the substantive validity of the East Pennsboro Township zoning ordinance that was in effect when it filed its application for a zoning permit on June 4, 1998, on the basis that the Ordinance improperly excluded the landing and taking off of helicopters in the entire Township. In South Whitford Associates, Inc. v. Zoning Hearing Board of West Whiteland Township, 157 Pa. Commw. 387 (1993), West VVhiteland Township had a zoning ordinance like East Pennsboro Township that neither permitted nor prohibited heliports. The Commonwealth Court concluded that there was a total exclusion of heliports. The Court noted: This court has previously held that a heliport constitutes a use which is inherently objectionable and not a legitimate land use. Appeal of Green & White Copter, Inc., 25 Pa. Commonwealth Ct. 445, 360 ^.2d 283 (1976). Therefore, excluding heliports is prima facie an acceptable use of the police power which does not automatically render the ordinance invalid. Bluebell Associates v. Township Engineer of Whitpain Township, 45 Pa. Commonwealth Ct. 599, 504 A.2d 1070 (1979). However, the developers argue that Green & White Copter must be interpreted narrowly. In that case, the developers suggest, this court upheld the municipality-wide exclusion of heliports because the facility in question was located in an R-2 residential district. The developers contend that the limited industrial district in our case is a more appropriate district for a heliport than an R-2 residential district. Therefore, they ask us to limit the application of the Green & White Copter rule to its particular facts. The question before this court, however, is not whether I-1 district -29- 99-0621 CIVIL 99-0837 CIVIL are better locations for heliports than R-2 district. The question is whether, in the entire municipality, heliports are a legitimate use. In Green & White Copter this court concluded that 'heliports, particularly in residential areas, embody a land use, the total exclusion of which appears prima facie to be designed to protect the public interest.' Id. 25 Pa. Commonwealth Ct. at 450, 360 A.2d at 285 (emphasis added). In Bluebell, this court further noted that 'Green & White Copter... presents a clear basis for concluding that the total exclusion of substantial aviation facilities.., from a largely residential township, can be accomplished without loss of the presumption of validity.' Bluebell, 45 Pa. Commonwealth Ct. at 608, 405 A.2d at 1070 (emphasis added). Therefore, our analysis must focus on West Whiteland Township as a whole and its land uses rather than the particular zoning district in which the heliport is proposed. (Emphasis added.) The Court stated: Ordinarily, a substantive challenge to a zoning ordinance's presumed validity initiates a series of shifting burdens of proof. A petitioning party must prove that the use is totally excluded and that the use is a legitimate one. At this point the ordinance is presumed unconstitutional. The municipality must then show that it has a rational basis for excluding the use to protect the general health, safety, morals and welfare of its citizens. (Citation omitted.) The Court concluded that the zoning hearing board in rejecting the developers' substantive challenge to the zoning ordinance did not err in finding that West Whiteland Township was a residential township and that the proposed heliport facility would cause significant disturbance to other landowners. The Court stated: The developers have not proved that their proposed heliport facility will not disturb other landowners' rights to enjoy the use of their property. Therefore, the developers have not rebutted the prima facie presumption of validity that attaches to an ordinance that totally excludes heliports. In the case sub judice, the Zoning Hearing Board found that East Pennsboro -30- 99-0621 CIVIL 99-0837 CIVIL Township is a predominately residential community with more than seventy-eight percent of its land used for either residential or open spaces. It concluded, "['r]hat exclusion of heliports in a mostly residential township is not a perse unreasonable exclusion." The Township, however, has conveniently proven for Rite Aid that this conclusion of law is not supported by substantial evidence because when the issue of Rite Aid's use of its headquarters to land and takeoff helicopters arose, it raced to the enactment of an amendment to its zoning ordinance that permits the landing and taking off of helicopters in three zoning districts of the Township. Thus, if Rite Aid were not permitted to operate a helistop as of right as an accessory use in an O-A Zoning District, the Township's Zoning Ordinance excluded the landing and taking off of helicopters in the entire Township which constitutes exclusionary zoning. There being no issue that the structural modifications to the parking garage for which Rite Aid filed its application for a building permit required any other approvals, the appropriate relief is for this court to order the issuance of the building permit. Girsh Appeal, 437 Pa. 237 (1970); Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219 (1974).7 THE PLANNING COMMISSION ISSUE AS TO EXCLUSIONARY ZONING East Pennsboro Township still maintains that even if the landing and taking off of helicopters in all areas of the Township constituted exclusionary zoning, Chapter 27, Part 19, Section 474 of the Zoning Ordinance prohibits Rite Aid from using its property See Footnote 5, infra. -31- 99-0621 CIVIL 99-0837 CIVIL for helicopter operations in an O-A zone without the approval of the Planning Commission. The Ordinance provides: Whenever in any district established under this ordinance a use is neither specifically permitted nor denied and an application is made by a property owner to the Planning Commission, or to the Building inspector for a building permit for such use, the Planning Commission shall have the authority to permit the use or to deny the use. The use may be permitted if it tends to conform with permitted uses in the district. The use shall be denied if it is not in conformity with permitted uses in the district. (Emphasis added.) In its brief, the Zoning Hearing Board argues that because Rite Aid "never bothered to submit its use request to the Planning Commission for approval, [it] has waived the right to complain of the inadequacy of the remedy it never sought." This argument makes no sense. The application for a building permit under Chapter 27, Part 19, Section 474 of the Zoning Ordinance can be made to either the Planning Commission or to the Building Inspector. Rite Aid made its application to the Building Inspector. When that occurs it would be the Building Inspector that should then refer the application to the Planning Commission, which he did not. Rather, he denied the building permit based solely on the amendment to the Zoning Ordinance No. 594-^-98. Rite Aid has waived nothing. Under no circumstances does this case have to be sent back to the Planning Commission. As to the merits of whether Section 474 constitutes an available procedure to prevent a remedy to Rite Aid based on exclusionary zoning, the Section provides that "[T]he commission shall have the authority to permit the use or deny -32- 99-0621 CIVIL 99-0837 CIVIL the use. The use may be permitted if it tends to conform with permitted uses in the district. The use shall be denied if it is not in conformity with permitted uses in the district." (Emphasis added.) In Blue Ridge Realty and Development Corporation v. Lower Paxton Township, 51 Pa. Commw. 349 (1980), the Commonwealth Court stated that "[a] planning commission is no more than an advisory body whose recommendations have no binding effect on the governing body." Todrin v. Board of Supervisors of Charlestown Township, 27 Pa. Commw. 583 (1976). Section 474 of the East Pennsboro Township Zoning Ordinance is not the equivalent of special exceptions or conditional uses that can be granted by a governing body and which are permitted uses that insulate the governing body from a claim of exclusionary zoning. See Kratzer v. Board of Supervisors of Fermanagh Township, Juniata County, 148 Pa. Commw. 454 (1992). Accordingly, the appropriate relief for the total exclusion of helicopter facilities in the Township is to order the issuance of the building permit. For the foregoing reasons, the following orders are entered. ORDERS OF COURT AND NOW, this /~-'~(~--day of July, 1999, IT IS ORDERED: (1) At 99-0837, the appeal of East Pennsboro Township from a decision of the Zoning Hearing Board of East Pennsboro Township dated January 21, 1999, IS DISMISSED. (2) At 99-0621 the decision of the Zoning Hearing Board of East Pennsboro -33- 99-0621 CIVIL 99-0837 CIVIL Township dated January 21, 1999, upholding the denial of a building permit to Rite Aid Corporation, IS REVERSED. East Pennsboro Township SHALL ISSUE Rite Aid Corporation the requested building permit. Jan Z. Krasnowiecki, Esquire James D. Flower, Jr., Esquire For Rite Aid Corporation Craig R. Shagin, Esquire For the Zoning Hearing Board of East Pennsboro Township Henry F. Coyne, Esquire Lisa Marie Coyne, Esquire For East Pennsboro Township Bythe Court,-, .yJ Edgar B. Bayley, J. ~ :saa -34-