Miller Son Pav., Inc. v. Wrightstown T

Full title: Miller Son Paving, Inc., Appellant v. Wrightstown Township, Appellee

Court: Commonwealth Court of Pennsylvania

Date published: Aug 10, 1979

45 Pa. Commw. 34 (Pa. Cmmw. Ct. 1979)

405 A.2d 568

Opinion

Argued April 5, 1979

August 10, 1979.

Zoning — Questions not properly raised below — Appeal.

1. The Commonwealth Court of Pennsylvania will not consider an issue in a zoning appeal which was not properly raised or considered below. [35]

Argued April 5, 1979, before Judges BLATT, DiSALLE and MacPHAIL, sitting as a panel of three.

Appeal, No. 1873 C.D. 1978, from the Order of the Court of Common Pleas of Bucks County in case of Miller Son Paving, Inc. v. Wrightstown Township, No. 77-6551-09-5.

Petition to the Zoning Hearing Board of Wrightstown Township challenging validity of zoning ordinance. Petition dismissed. Petitioner appealed to the Court of Common Pleas of Bucks County. Appeal dismissed. RUFE, III, J. for the court en banc. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Stephen B. Harris, with him Harris Harris, for appellant.

Terry W. Clemons, Solicitor, for appellee.

OPINION BY JUDGE DiSALLE, August 10, 1979:

Miller and Son Paving, Inc. (Miller), appeals a decision of the Court of Common Pleas of Bucks County which affirmed the action of the Wrightstown Zoning Hearing Board (Board) in upholding the constitutionality of sections of the Wrightstown Township Zoning Ordinance. Miller challenges the ordinance on three grounds: (1) it has been preempted by other state law; (2) it unconstitutionally prohibits expansion of nonconforming uses; and (3) the setback requirements contained therein are arbitrary, capricious and unreasonably confiscatory. We reject each of these contentions and affirm on the basis of Judge RUFE's able opinion which is located at 32 Bucks Co. 239 (1978). Miller has also raised an additional issue on appeal (relating to the admissability of certain evidence before the Board) which, research reveals, was not raised before, or considered by, the lower court. The consideration of an issue by a lower court being an essential prerequisite to review of the matter on appeal, this question will not be considered by our Court. Richland Township v. Hellerman, 30 Pa. Commw. 438, 373 A.2d 1367 (1977).

ORDER

AND NOW, this 10th day of August, 1979, the order of the Court of Common Pleas of Bucks County dated August 3, 1978, and found at 32 Bucks Co. 239 (1978), is hereby affirmed.