Alessi v. Millcreek Township Zoning Hearing Board

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent.

In interpreting the provisions of a zoning ordinance, undefined terms must be given their plain and ordinary meaning. 1 Pa.C.S. § 1903(a); Kissell v. Ferguson Township Zoning Hearing Board, 729 A.2d 194 (Pa.Cmwlth.1999). In addition, a zoning hearing board is the entity responsible for the interpretation and application of the zoning ordinance, and its interpretation of its own ordinance is entitled to great deference from a reviewing court. Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55 (Pa.*285Cmwlth.), petition for allowance of appeal denied, 561 Pa. 664, 747 A.2d 904 (1999).

In this case, the ZHB determined that the term “convenience store”, as used in Sections 407(22) and 406-A(7) of the Ordinance, contemplates a use which includes the sale of gasoline. As the Majority correctly notes, the evidence found credible by the ZHB overwhelmingly supports the conclusion that “convenience store”, as that term is commonly understood, includes the sale of gasoline. Indeed, 14 of the 15 “convenience stores” presently in existence in the Township sell gasoline.

In addition, as the Majority also correctly notes, this Court may look to dictionaries in determining the plain and ordinary meaning of undefined terms in a zoning ordinance. Kissell. The American Heritage Dictionary of the English Language: Fourth Edition (2000) defines “convenience store” as “[a] small retail store that is open long hours and that typically sells staple groceries, snacks, and sometimes gasoline.'’ (emphasis added).1

Moreover, and more importantly, the Majority concedes that the “convenience store” use, as stated in 406-A(7) of the Ordinance, encompasses the sale of gasoline. See Majority Opinion at 10 fn. 10. It is a well settled principle of statutory construction that a word or phrase used in one place in a statute will be construed to mean the same when it is used elsewhere in the same statute. Housing Authority of County of Chester v. State Civil Service Commission, 556 Pa. 621, 780 A.2d 985 (1999); Commonwealth v. Maloney, 365 Pa. 1, 73 A.2d 707 (1950). Thus, the “convenience store” use, as stated in all sections of the Ordinance, either includes or does not include the sale of gasoline.

In short, while granting the proper deference to the ZHB in its interpretation of its Ordinance, it is clear that the ZHB neither abused its discretion nor committed an error of law in determining that the “convenience store” use as stated in Section 407(22) of the Ordinance includes the sale of gasoline. Accordingly, unlike the Majority, I would affirm the order of the trial court affirming the decision of the ZHB.

. As the Majority relies upon a differing definition of "convenience store", as defined in a different dictionary, it could be concluded that a doubt exists as to the intended meaning of the "convenience store" use as stated in the Ordinance. Any doubt as to the meaning of the term must be resolved in favor of the landowner and the least restrictive use of the land. Section 603.1 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 10603.1; Kissell.