566 A.2d 926 | Pa. Commw. Ct. | 1989
OPINION
Hansen Properties, III (Hansen), appeals a Montgomery County Common Pleas Court order sustaining the Horsham Township Zoning Hearing Board’s (Board) denial of two variance requests. We affirm in part and reverse in part.
Hansen is the owner of Oak Terrace, a private country club (club) located in a residentially zoned district that allows only single-family detached dwellings.
First, Hansen contends that the Board erred in concluding that the ordinance does not impose unnecessary hard
A landowner seeking a use variance must establish that (1) the ordinance imposes an unnecessary hardship on the property; (2) that results from the property’s unique physical characteristics; (3) granting the variance would not have an adverse impact on the health, safety and welfare of the general public; (4) the hardship is not self-inflicted; and (5) the variance sought is the minimum that will afford relief. Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10912; Bellosi v. Zoning Hearing Board of Clifton Heights Borough, 96 Pa.Commonwealth Ct. 83, 506 A.2d 997 (1986). Unnecessary hardship, in turn, results when the property cannot be used for any permitted purpose, or for a permitted purpose only at prohibitive expense, rendering it practically valueless if the variance is not granted. Keystone Sportsmen Association of Lycoming County, Inc. v. Zoning Hearing Board of Delaware Township, 100 Pa. Commonwealth Ct. 384, 514 A.2d 974 (1986). Moreover, “[a] mere showing of economic hardship, standing alone, does not justify the granting of a variance.” Buckingham Developers, Inc. Appeal, 61 Pa. Commonwealth Ct. 408, 412, 433 A.2d 931, 933 (1981).
Our review of the record discloses that Hansen has not established the threshold requirement of unnecessary hardship. Here, the Board found that Hansen’s present use of the property as a country club and golf course was reasonable.
Hansen next argues that the Board erred in concluding that Ordinance § 701.1(g)l does not permit a private country club to operate a public restaurant on its premises as a commercial activity “incidental to the underlying permitted use.”
Provisions of a zoning ordinance must be given their plain, ordinary meaning with all doubts resolved in favor of the landowner. Appeal of Mt. Laurel Racing
It is clear that Section 701.1(g) allows a private golf course and the operation of a restaurant for its club members as a special exception as a permitted use. The ordinance also allows commercial activity that is incidental to this permitted use.
Based on this testimony, we conclude that the ordinance’s language allowing the club to conduct commercial activity “incidental to the underlying permitted use” encompasses the operation of a public restaurant on the premises of its
Accordingly, the order of the common pleas court is affirmed in part and reversed in part.
ORDER
That portion of the Montgomery County Common Pleas Court order, No. 87-07940 dated December 30, 1988, denying a variance for commercial use of the manor house is affirmed. We reverse the part which determines that the township ordinance does not allow the operation of a public restaurant on a private golf club as “incidental” commercial activity.
. The country club is a legal non-conforming use the township ordinance permitted as a special exception by the Horsham Township Zoning Code, Ordinance § 701.1(g).
. Where the trial court does not take additional evidence, our scope of review is limited to determining whether the zoning hearing board committed an error of law or an abuse of discretion and whether the board’s findings are supported by substantial evidence. Kadi v. Zoning Hearing Board of the Township of Lynn, 73 Pa. Commonwealth Ct. 295, 457 A.2d 1042 (1983).
. Board’s Finding of Fact No. 12, Record Item Exhibit 3.
. Notes of Testimony (N.T.) of Elmer F. Hansen, 1/12/87, p. 12.
. Hansen cites Logan Square Neighborhood Association v. Zoning Hearing Board of Adjustment, City of Philadelphia, 32 Pa. Commonwealth Ct. 277, 379 A.2d 632 (1977), and Zoning Hearing Board of the Township of Indiana v. Weitzel, 77 Pa. Commonwealth Ct. 108, 465 A.2d 105 (1983), as holding that a landowner’s financial burden constitutes unnecessary hardship when use of the property’s building for any permitted use is possible only through extensive reconstruction. In those cases, however, this Court’s holdings were premised on the fact that each landowner sought a variance for his building which was located on a small parcel of land. Thus, the Court’s conclusion that more than mere economical hardship existed was based on its determination that the buildings were clearly integral to the entire property’s use. As noted above, Hansen has not established that denying the variance here will result in use of the entire premises only at a prohibitive expense.
. Section 701.1(g)l states that:
(g) The following uses may be permitted when authorized by the Township Zoning Board as a special exception:
1. Privately owned low density outdoor recreational area or use, such as a park, riding academy, golf course, provided that:
(b) No commercial activity shall be permitted except for charging admission, the sale of refreshments, or such other purposes as clearly incidental to the permitted use.
. Although the ordinance does not provide a definition of "incidental use," Webster’s Third New International Dictionary 1142 (1981) defines "incidental” as "subordinate ... or attendant in position or significance.” The term "customarily incidental,” as used in land use regulation law, has been defined as “a use which, when present, is usually not the main use but ... secondary or accessory to some other use.” Klein v. Township of Lower Macungie, 39 Pa.Commonwealth Ct. 81, 395 A.2d 609 (1978).
. N.T., Thomas Hanratty, 1/12/87, p. 36.
. N.T., Hansen, p. 17; N.T., Hanratty, pp. 37-39.
. Our disposition here makes it unnecessary to address Hansen’s contention that the Board erred in denying his variance application to permit public use of the club’s private restaurant.