dissenting.
I respectfully dissent. I would hold that the distinction between permitting off-site accessory uses attendant to a main use located in the Borough of Aspinwall (Borough) and not permitting such accessory uses while the main use is not located in the Borough is a rational one. I would also hold the Borough’s zoning ordinance not to be exclusionary.
St. Margaret Memorial Hospital (Hospital) filed an application with the Borough for permission to operate a parking lot as accessory parking for employee and/or patient vehicles. While the proposed parking lot is in the Borough, the Hospital itself is located across the road from the lot that forms the boundary between the Borough and the City of Pittsburgh. The Hospital’s application was denied and it then sought permission from the Borough’s Zoning Hearing Board for either a variance or a continuation of a non-conforming use (the property had been a used-car lot). That, too, was denied because no non-conforming use was established and the unnecessary hardship necessary to grant a variance did not exist. The Hospital did not appeal those denials.
The Hospital instead sought a curative amendment from the Borough Council seeking to amend the Borough’s zoning ordinance to permit the parking lot use. It contended that the Borough’s zoning ordinance permits off-site accessory parking lots within 600 feet of a main use located within the Borough, and it unlawfully discriminates against off-site parking lot accessory uses by not permitting them when the main use is located in an adjacent municipality. The Hospital also contended that the ordinance was exclusionary because it only permitted parking lots owned by public bodies and not privately owned parking lots as main uses. The Borough Council denied the request for a curative amendment and the Hospital appealed to the trial court which affirmed the Borough Council’s decision.
The majority reverses by holding that by permitting off-site parking as an accessory use for a main use located within the Borough and not those uses located in another municipality violates the Hospital’s equal protection rights because such a restriction “bears no substantial relationship to the public health, safety, morals or general welfare.” Because it allowed the parking lot on that basis, it properly did not reach the issue of whether the zoning ordinance is exclusionary by allowing only public parking lots as a main use.
The main reason I disagree with the majority is that I believe there is a rational basis for making permission to have an off-site accessory use dependent on whether the main use is located in the Borough. Underlying a zoning ordinance is a land use plan developed as part of the local government’s comprehensive plan. See Section 301 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10301. In developing a land use plan, the local government is required to take into consideration many factors, including topography, existing uses, intensity, character and timing of development, environmental considerations, but not in such a way as to exclude any legitimate use. In enacting its zoning ordinance, the Borough implemented the land use plan based on an overall scheme by designating zoning districts by use and intensity of use. Because both the type, number and intensity of accessory uses are directly related to the types and intensity of main uses permitted in a particular zoning district, to allow accessory uses regardless of whether the main use is located in adjoining municipality skews the other municipalities’ land use plan, thereby adversely impacting on the Borough’s zoning ordinance.
By definition, accessory uses are contemplated as being dependent on a main use. When the Borough designated a main use in a particular district, it also determined the anticipated intensity and uses of a particular type of accessory use. By allowing an accessory use in the Borough when the main use is in another municipality, that decision effectively allows the planning decisions of that entity to carry over to the other municipality. In this case, more accessory uses would be allowed than anticipated by the Borough’s zoning ordinance. For example, if in this particular case, the Hospital wanted a larger parking lot, say, with two or three hundred *1275cars, allowing such a lot as an accessory use could have the effect of destroying the viability of the town’s small business district making the Borough’s efforts at planning development worthless. Because of the small size of the business district, such a result would never have been envisioned or planned when off-site parking was allowed in the Borough’s Zoning Code as an accessory use. Because making permission to have an accessory use dependent on the main use located within the Borough is not arbitrary, I would find that the ordinance does not violate equal protection.
Even if I didn’t disagree with the majority and agreed that there is no rational basis to deny accessory uses based on where the main use is located, that does not mean that the Hospital should be automatically granted permission to operate an accessory off-site parking lot. The accessory parking lot is located in an A-2 Commercial District. Because an accessory use is considered the same as the main use, for the parking lot to be permitted, the Hospital’s use would also have to be permitted in the A-2 district. Fun Bun, Inc. v. Zoning Board of Adjustment, 5 Pa.Commonwealth Ct. 439, 291 A.2d 344 (1972). Even if I agreed with the majority’s holding that the difference in permitting accessory uses dependent on whether the main use is located within violates equal protection, in addition to requiring the Hospital on remand to meet site requirements (setbacks and landscaping), I would hold that the Hospital is also required to establish that a hospital use is permitted in an A-2 zoning district.
Finally, as to the issue of whether the Borough’s permission of only publicly owned parking lots as a main use and not privately owned ones constitutes exclusionary zoning, Kavanagh v. London Grove Township, 33 Pa.Commonwealth Ct. 420, 382 A.2d 148 (1978), aff'd by an equally divided court, 486 Pa. 133, 404 A.2d 393 (1979), appeal dismissed, 444 U.S. 1041, 100 S.Ct. 725, 62 L.Ed.2d 726 (1980), is presently controlling. In that case, we held that landfill uses were not excluded from a township even though only publicly owned landfills were permitted. While Kavanagh’s holding may need to be revisited, we are bound by that decision.
Accordingly, I would affirm the trial court.