39 Pa. Commw. 570 | Pa. Commw. Ct. | 1979
Opinion by
Thomas Heck (appellant) has appealed to this Court from an order of the Court of Common Pleas of Luzerne County, which affirmed the denial of his application for a special exception by the Zoning Hearing Board of Harveys Lake Borough (Board).
The appellant owns a parcel of shoreline property in the borough of Harveys Lake zoned S-l. On the property is a one-story structure containing a storage/ entertainment area and having a height of approximately eight feet, which is approximately two feet above the level of the adjacent road. The appellant proposes to erect a second-floor game room on top of this structure, which would make the height of the structure approximately seventeen feet, or approximately eleven and one-half feet above the adjacent road level. Because the maximum height permitted in a district zoned S-l is one story or twelve feet, he sought a special exception under Section 4.220 of the Harveys Lake Borough Ordinance (Ordinance), which provides in part:
In any district other than the R-l or R-2 Districts, a building may be permitted to exceed the height limit of the district where it is to be located, and be erected up to a height of not more than 6 stories or 75 feet, whichever is*573 less, provided that it can he shown that adequate fire protection will be available, and that such modification shall be approved by the Zoning Hearing Board upon the review and approval of the Planning Commission only in accordance with the procedures established for the approval of a Special Exception.
The Board denied the exception because (1) it determined that Section 4.220 was not applicable to the S-l district, and (2) it found that the special exception would be against the best interests and welfare of the community. The Court of Common Pleas sustained the position and reasoning of the Board, and this appeal followed.
Initially we note that the lower court took no additional evidence, and our scope of review, therefore, is limited to determining whether or not the zoning board abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record. McCarron v. Zoning Hearing Board, 37 Pa. Commonwealth Ct. 309, 389 A.2d 1227 (1978).
The first issue raised is whether or not the Board was correct in its ruling that Section 4.220 of the Ordinance is not applicable in the S-1 district. The Board’s position is that Section 4.220 is rendered inapplicable here by Section 2.400, which provides as follows:
a. Those uses permitted in a S-l Zone are the most restrictive.
b. All other uses are less restrictive in the order they are permitted in the zones in the sequence shown: S-1R, R-1, R-1 A, R-2, R-3, C-1, C-2, C-3 and M-1.
c. Where a use is specifically enumerated in a less restrictive zone, such use shall not be permitted in a more restrictive zone unless it*574 is specifically enumerated as a permitted use therein.
Because height exceptions are permitted uses in districts less restrictive than R-1 and R-2, the Board argues, they cannot be a permitted use in the most restrictive district, S-l, unless they are “specifically enumerated as a use therein.” In fact, the schedule for the 8-1 district does not indicate that height exceptions are permitted uses; therefore, the Board concludes, height exceptions are not allowed in the S-l district. With this reasoning we cannot agree.
The language of Section 4.220 is clear that, except in R-l or R-2 districts, a building may exceed height limitations, provided that the specified procedure is followed. Also, under Section 1933 of the Statutory Construction Act of 1972 (Act), 1 Pa. C.S. §1933,
The second issue raised is whether or not the proposed special exception would he against the best interests and welfare of the community. At the outset we note that a special exception is not an exception to a zoning ordinance but a use which is permitted unless, under the circumstances, such use would adversely affect the community, Brunner v. Zoning Hearing Board, 12 Pa. Commonwealth Ct. 109, 315 A.2d 359 (1974), and once an applicant for a special .exception proves that the proposed use is a permitted one the burden falls upon a protestan! to prove that the use would constitute a detriment to public health, safety, or welfare, Copeechan Fish and Game Club v. Zoning Hearing Board, 32 Pa. Commonwealth Ct. 415, 378 A.2d 1303 (1977). In the instant case the Board’s conclusion that the requested special exception would be against the best interests and welfare of the community was based on the following three findings:
a. The Board has determined that the petitioner intends to- use the addition as living quarters and a dwelling — a use which is not permitted by the ordinance (See Article III, Schedule III — Principle [sic] Use);
b. There is inadequate parking for the expanded use;
c. The view of the lake will be reduced by erecting this addition.
The appellant argues that the first finding is unsupported by the evidence because he repeatedly stated during the hearing before the Board that his intention was not to use the structure as living quarters. The Board justified its finding by citing several other statements by the appellant which it contends indicate or imply that the structure would be used as
As to the second finding, we do not believe it to be a valid reason for denying the special exception
The third finding of the Board, that the view of the lake would be blocked, is based on the testimony of three protesting residents and on the appellant’s own admission that the proposed addition would block the view of the lake from the road for a 20-foot span. This reduced view of the lake was evidently considered by the Board to be contrary to the interest of the community in preserving the scenic beauty of the lake. The question is, however, whether such concern for scenic beauty is a sufficient basis for denial of the special exception. We think not. While this Court has observed that the concept of general welfare of a community in zoning matters includes a consideration of aesthetics, County of Fayette v. Holman, 11 Pa. Commonwealth Ct. 357, 315 A.2d 335 (1973), we have also declared that aesthetics alone cannot support a determination that the general welfare of a community would be adversely affected by
A third issue, while not addressed by the Board, was raised by the court below and argued by the parties before this Court. It referred to whether or not procedural requirements of Section 4.220 of the Ordinance had been met and this section directs that exceptions to the height requirement “shall be approved by the Zoning Hearing Board upon review and approval of the Planning Commission. . . .” The appellant here submitted the subject modification to the Planning Commission, but the Commission did not give its approval because one member did not vote oil the question and the other two came to different decisions. The appellant argues that requiring the approval of the Planning Commission is an unlawful delegation of the Board’s power in zoning cases and we agree. Under the Pennsylvania Municipalities Planning Code (MPC), a planning agency is intended to have advisory power only,
The order of the Court of Common Pleas is reversed.
Order
And Now, this 8th day of January, 1979, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is hereby reversed, and the Zoning Hearing Board for Harveys Lake is directed to grant Thomas Heck’s application for a special exception.
The rules of statutory construction are applicable to statutes and ordinances alike. Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commonwealth Ct. 129, 358 A.2d 433 (1976).
The statements of the appellant were made in the following contest:
Q. Would you be there to supervise when this facility is in use, you or your wife, or some adult?
. A. I wouldn’t have any objection to our 16 or 18 year old boy being there to go water skiing. They wouldn’t be staying overnight without an adult being there.
Q. You have kitchen facilities in there now?
A. Well there is a sink, a refrigerator and a hot plate.
Q. Any chance that in an emergency, that could be used for a weekend holiday?
A. It definitely could be.
Q. It could conceivably be used as such?
A. Yes.
He also referred to the structure at one point as “my dwelling.”
The Ordinance does mandate two parking spaces “for each family or dwelling unit.”
The Board did observe that “the parking must be very close to the roadway, thereby creating a potential traffic hazard.” Based on the evidence on the record, however, we can only consider this as conjecture.
Section 105 of the Pennsylvania Municipalities Planning Code (MPO), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10105, provides in part:
It is the further intent of this act that any recommendation made by any planning agency to any governing body be advisory only.
See also Section 209.1 of the MPC, added by the Act of June 1, 1972, P.L. 333, 53' P.S. §10209.1 (powers and duties of planning agencv).
Section 913 of the MPC, 53 P.S. §10913, provides in part:
Where the governing body in the zoning ordinance, has stated special exceptions to be granted or denied by the board pursuant to express standards and criteria, the board shall hear and decide requests for such special exceptions in accordance with such standards and criteria.