55 Pa. Commw. 306 | Pa. Commw. Ct. | 1980
Opinion by
Appellants, as objectors in this zoning case, appeal from the Court of Common Pleas of Westmoreland County, which reversed the Zoning Hearing Board of the City of New Kensington (board) and ordered the issuance of a zoning certificate to appellee James E. Kopelman as requested in his application for a special exception under the New Kensington zoning ordinance.
The board denied Kopelman’s application. Without taking new evidence, the common pleas court reversed the board because of legal error in the board’s interpretation of Section 307 of the ordinance, the special exception provision which permits an “Eating Place” in R-4 districts “upon lots adjoining a legally permitted use other than a one or two-family dwelling. ’ ’
The initial issue in this case is whether the adjoining special exception restaurant use is such a “legally permitted use” as Section 307 requires to qualify a subject lot for a special exception. We agree with the common pleas court that it is, and thus that the board erred in refusing the requested special exception on that ground.
As Judge Lotjghran stated:
[The ordinance] does not define permitted use or special exception. However, ... it must be noted that the ordinance clearly states that*309 those uses not specifically listed or defined in the categories of permitted uses or special exceptions shall not he permitted. Accordingly, by the ordinance itself, permitted uses and special exceptions both fall within permitted uses. The difference being that special exceptions are permitted uses that are qualified and in this case must comply, among other requirements, with Section 307 of the ordinance. Section 307 defines when a special exception would be permitted and therefore must be taken in its broadest sense and the landowner given the benefit of the least restricted use and enjoyment. Further, where definition is lacking, interpretation must be applied according to the common and approved usage. Brunner v. Zoning and Hearing Board of Upper Makefield Township, 12 Pa. Cmwlth. 109, 315 A.2d 359 (1974).. . . Applying these legal precepts to the present case, this court has no recourse but to construe the meaning of ‘legally permitted use’ as one that is a permitted use or one that is allowed to exist by provision of the Zoning Ordinance or by compliance with the zoning provision becomes a permitted use such as a special exception. Section 208 of the ordinance is consistent with this interpretation and in fact refers to special exceptions as permitted uses.3
We grant that, in technical zoning jargon, “permitted use” usually refers only to uses allowed absolutely and unconditionally. However, Section 307 here does
Objectors also contend that the board properly denied Kopelman’s application because his property abuts several occupied single-family dwellings, urging us to interpret Section 307 to preclude special exceptions uses on lots which adjoin one or two-family dwellings without regard to the nature of any other adjacent permitted use. We decline to do so. A fair reading of Section 307 requires only that the adjacent legally permitted use, which is to qualify the subject tract for a special exception, cannot itself be a one or two-family dwelling.
Finally, objectors contend that they fulfilled their duty to present evidence sufficient to establish the proposal as unduly detrimental to health, safety or general welfare. Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980).
Although only one member of the boards majority expressed traffic considerations as a basis for refusing the application, objectors put their greatest stress on the position that purported abnormal traffic patterns which may result from the restaurant uses provide sufficient justification for denying the special-exceptions. We disagree, and adopt Judge Lough-ban 's analysis.
Accordingly, we affirm the common pleas court.
Order
And Now, this 12th day of December, 1980, the September 10, 1979 order of the Court of Common Pleas of Westmoreland County, at No. 159 of 1979, is affirmed.
Kopelman lias planned to divide the tract functionally, devoting one acre to one of the enterprises and the remaining acre to the other.
Section 307 provides in pertinent part:
Hotels and Motels, Gift Shop, Eating Place or Pharmacy related thereto, Personal Services, and Professional Services in an R-4 District shall be located upon lots adjacent to or immediately across a street or public right-of-way from a ‘C’ District or upon lots adjoining a legally permitted use other than a one or two-family dwelling.
Strictly speaking, Section 208 does not expressly categorize special exceptions as “permitted” by way of definition; however, that section implicitly considers special exceptions to be “permitted uses” in that it includes both enumerated “permitted uses” and enumerated “special exceptions” under the single section heading of “Permitted Uses.”
On this point, Judge Lotjghrait stated in his opinion:
An examination of the testimony and other matters presented to the Board reveals that there was no evidence presented to show that any increase in traffic was of such character to bear a substantial relation to the health and
An examination of the record and testimony in this case reveals that the subject property is located across from commercial areas whether the same be zoned commercial or existing by reason of nonconforming use, variance or special exception. It is clearly pointed out in the testimony that the traffic flow exists because of that commercial area and that the proposed use would not contribute to the traffic but draw from it.