Summary
In Price v. Bradford, supra, the caption of the act construed by the court was considered in determining the meaning of the act.
Summary of this case from State Board of Ed. v. Richmond County BoardOpinion
Argued April 18, 1988
June 6, 1988.
Zoning — Nonconforming use — Scope of appellate review — Error of law — Abuse of discretion — Different use.
1. Review by the Commonwealth Court of Pennsylvania in a zoning case where the lower court took additional evidence is to determine whether the trial court committed an abuse of discretion or error of law. [569]
2. In determining whether a proposed use is a continuation of a legal nonconforming use, it must be decided whether the proposed use is substantially different from the nonconforming use, and in such determination the court is properly guided by the manner in which uses are categorized in the applicable zoning ordinances of the municipality. [569]
3. Where a zoning ordinance permits meeting halls in a zoning district as a special exception but excludes restaurants and bars, it is error to conclude that a proposed use of property for a restaurant and bar is a continuation of a nonconforming use as a meeting hall. [570]
Argued April 18, 1988, before Judges CRAIG and COLINS, and Senior Judge KALISH, sitting as a panel of three.
Appeal No. 267 C.D. 1987, from the Order of the Court of Common Pleas of McKean County, in the case of Joel M. Price, Mark Wolford and Steve Hvizdzak, Jr. v. The Zoning Hearing Board of the Township of Bradford, Myron Crumrine, Chairman, Arthur Slike, Thomas Ordiway, James Burns, and Gerald Boser, Members, No. 11 E.D. of 1986.
Objectors appealed to the Bradford Township Zoning Hearing Board the issuance of building permit and certificate of compliance by township zoning officer. Appeal dismissed. Objectors appealed to the Court of Common Pleas of McKean County. Appeal dismissed. CLELAND, P.J. Objectors appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Application for reargument filed and denied.
Gregory A. Henry, for appellants.
William J. Kubiak, McDowell, McDowell, Wick Daly, for intervenor, Lewis E. Egbert.
Joel Price, Mark Wolford, and Steve Hvizdzak, Jr., (objectors) appeal an order of the Court of Common Pleas of McKean County, affirming a decision of the Zoning Hearing Board of Bradford Township and granting the intervenor, Lewis Egbert, a building permit and certificate of zoning compliance.
The facts as found by the trial court are as follows. In April 1986, Egbert purchased a structure located at 434 South Avenue from the Fraternal Order of the Eagles (FOE). The FOE had used the structure since 1947 as a club meeting hall, and for club dinners and dances, with a bar for club members. On December 1, 1985, the FOE stopped using the building.
In 1963 the township passed a zoning ordinance which placed the FOE building in an R-6 residential district. The FOE's use of the building as a meeting hall for a fraternal organization was not a permitted use in the R-6 district. However, because the FOE had legally used the building since 1947, FOE's use after the 1963 zoning ordinance had constituted a legal non-conforming use.
On April 21, 1986, Egbert filed a zoning application to build an addition to the structure. The application stated that Egbert intended to use the building as a restaurant and bar. The zoning officer issued a building permit and a certificate of zoning compliance. The objectors appealed to the Bradford Township Zoning Hearing Board. The board affirmed the decision of the zoning officer.
On this appeal from the trial court's affirmance of the decision of the zoning hearing board, the issue is whether the trial court erred in concluding that Egbert's proposed use of the building as a restaurant and bar is a continuation of the FOE's nonconforming use. Because we conclude that Egbert's proposed use is not a continuation of the FOE's non-conforming use, we reverse.
The objectors also assert that the trial court erred in failing to conclude that FOE abandoned their non-conforming use. Because we reverse on the basis that Egbert's proposed use is not a continuation of FOE's non-conforming use, we need not address that issue.
Where, as in this case, the trial court takes additional evidence, our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. Metzger v. Zoning Hearing Board of the Township of Warrington, 85 Pa. Commw. 301, 481 A.2d 1234 (1984).
In determining whether a use is continuation of legal non-conforming use, the court must determine whether the use is similar to or different from that of the previous owner. Bevans v. Hilltown Township, 72 Pa. Commw. 227, 457 A.2d 977 (1983). In affirming the zoning hearing board, the trial court concluded that "the nature and extent of the use proposed by Egbert is not substantially different from the non-conforming use that existed in 1963."
In order to determine whether the non-conforming use and the proposed use are the same, "[w]e must look to the applicable zoning ordinance's structure as our chief guide with respect to how uses are categorized for the particular municipality." Gustin v. Zoning Board of Sayre Borough, 55 Pa. Commw. 410, 412, 423 A.2d 1085, 1086 (1980); see R. Ryan, Pennsylvania Zoning Law and Practice § 4.2.1 (1970). The Bradford Township Zoning Ordinance only permits "meeting halls for private clubs, lodge or fraternal organizations" — which was the former use of the property by FOE — in an R-6 district, by special exception. The R-6 district does not allow restaurants or bars, either as permitted uses or as special exceptions.
A restaurant and bar, the proposed use by Egbert, is permitted only in C-N, C-1, and C-2 districts. None of those commercial districts permit meeting halls for clubs or fraternal organizations.
Thus, as designated by the zoning ordinance, Egbert's use of the building as a restaurant is different from the FOE's use of the building as a meeting hall. Therefore, the trial court committed an error of law in concluding that Egbert's proposed use was a continuation of the FOE's non-conforming use. Bevans.
Accordingly, we reverse.
ORDER
NOW, June 6, 1988, the order of the Court of Common Pleas of McKean County, at No. 11 Equity Docket of 1986, dated January 9, 1987, is reversed.