A. DiMattia and N.E. DiMattia v. ZHB of East Whiteland Twp.
168 A.3d 393
| Pa. Commw. Ct. | 2017Background
- Property Owners own 1238 West King Street in East Whiteland Township, zoned R-1 (residential).
- They built a large pole barn garage in 2010, representing they would live on the property and store a recreational motor home and boat.
- Owners do not reside on the property and rent the house; they do not lease the pole barn or carriage houses to tenants.
- Neighbors complained about vehicle storage and race car activities; a 2013 notice addressed trailers and unregistered vehicles, which was withdrawn.
- In 2014 a new notice alleged servicing vehicles from an auto repair business and race car work on the property, violating the zoning ordinance; Owners appealed.
- ZHB concluded race car activities were not an accessory use and prohibited use of the garage driveway for race car work, sustaining most charges but finding no ongoing auto-repair violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are race car activities an accessory use to the residence? | DiMattias contend activities are accessory by statute and habit. | ZHB properly required incidental, subordinate connection to the residential use; activities are not customary for residential lots. | No; race car activities are not an accessory use. |
| Does private garage status automatically permit non-residential uses if attached to a residence? | Section 200-90(A)(1) lists private garage as an accessory use to residences. | 21 not exempt; must satisfy accessory-use requirements; garage alone does not authorize race-car work. | Garage alone does not authorize non-residential activity; must be an accessory use. |
| Does Owners' nonresidency bar qualifying as an accessory use even if activity were incidental? | Nonresidency should not defeat an accessory-use argument if activities are incidental. | No residence on the property; activity cannot be subordinate to or serve a principal residential use. | Nonresidency defeats the accessory-use claim. |
Key Cases Cited
- Rudolph v. Zoning Hearing Board of Cambria Township, 839 A.2d 475 (Pa. Cmwlth. 2003) (home occupation requires residence on the property)
- Mitchell v. Zoning Hearing Board of the Borough of Mt. Penn, 838 A.2d 819 (Pa. Cmwlth. 2003) (use not accessory if no residence on property)
- Kelly v. Zoning Hearing Board of Mars Borough, 554 A.2d 1026 (Pa. Cmwlth. 1989) (garage cannot be accessory if no house on property)
- Page v. Zoning Hearing Board of Walker Township, 471 A.2d 1348 (Pa. Cmwlth. 1984) (small motor vehicle repair not incidental to residential use)
- Risker v. Smith Township Zoning Hearing Board, 886 A.2d 727 (Pa. Cmwlth. 2005) (recreational activity not incidental to residential use if not customary)
- Kuzsyk v. Zoning Hearing Board of Amity Township, 834 A.2d 661 (Pa. Cmwlth. 2003) (factors for incidental/customary use)
- Barnabei v. Chadds Ford Township Zoning Hearing Board, 118 A.3d 17 (Pa. Cmwlth. 2015) (activity must be subordinate and incidental to residence)
- Hess v. Warwick Township Zoning Hearing Board, 977 A.2d 1216 (Pa. Cmwlth. 2009) (intensity of use analyzed to determine accessory nature)
- Sky’s the Limit, Inc. v. Zoning Hearing Board of Smithfield Township, 18 A.3d 409 (Pa. Cmwlth. 2011) (customarily found/incidental test for accessory use)
- Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961 (Pa. Cmwlth. 2015) (kennel/dog-keeping cases analogous to accessory-use analysis)
- Perez v. Borough of Kennett Square, 336 A.2d 437 (Pa. Cmwlth. 1975) (business-use not incidental on residential property)
- Platts v. Zoning Hearing Board of Borough of Bradford Woods, 654 A.2d 149 (Pa. Cmwlth. 1995) (mandatory consideration of all accessory-use requirements)