Opinion
No. 17 C.D. 2012
11-05-2012
Gary Spencer v. Zoning Hearing Board of Salem Township v. Donald E. Bower and Joanne E. Bower, his wife, Appellants
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Donald E. Bower and Joanne E. Bower (the Bowers) appeal from the Luzerne County Court of Common Pleas' (trial court) December 19, 2011 order granting Gary Spencer's (Spencer) land use appeal, and approving Spencer's zoning permit for the placement of a mobile home on his property. The issue before this Court is whether a mobile home is a permitted use in a B-3 Highway Business Zoning District under the Salem Township Zoning Ordinance (Ordinance). We affirm.
Spencer is the owner of real property in Salem Township. The Bowers are owners of real property that is contiguous and adjacent to Spencer's property. On November 17, 2009, Spencer filed an application with Salem Township to place a mobile home on his property. By November 28, 2009 letter, a Salem Township Zoning Officer denied Spencer's request, stating, in relevant part:
The property in question is located in a B-3 Highway Business Zoning District. Mobile Homes are not listed as a permitted use in the B-3 Business Zoning District. Mobile Homes on a permanent foundation are specifically listed as a permitted use in A-1 (Agricultural) Zoning District. Therefore, I must deny your application to erect a mobile home at 457 Salem Boulevard.Reproduced Record (R.R.) at 17a.
Spencer timely appealed from the denial to the Salem Township Zoning Hearing Board (Board). After a February 16, 2010 hearing, the Board rejected Spencer's appeal, and issued a written decision on March 5, 2010. Spencer timely appealed from the Board's decision to the trial court, which permitted the Bowers to intervene. Briefs were filed and the parties presented oral argument to the trial court. By order dated December 19, 2011, the trial court granted Spencer's appeal, reversed the Board, and approved Spencer's zoning permit. The Bowers appealed to this Court.
"Our scope of review where the trial court took no additional evidence is limited to determining whether the Board committed an error of law or abused its discretion." Thomason v. Zoning Hearing Bd. of Twp. of Radnor, 26 A.3d 562, 565 n.5 (Pa. Cmwlth. 2011). --------
The Bowers argue that the trial court erred when it determined that mobile homes are a permitted use in a B-3 Highway Business Zoning District. We disagree. Section 506 of the Ordinance permits several residential uses of property zoned as B-3 Highway Business Zoning District. They include: "Single-Family Detached Dwellings, Two Family Dwellings, Dwelling over and/or attached to Business, No Impact Home-Based Business, [and] Accessory uses to the above." R.R. at 245a (emphasis added). A single-family detached dwelling is defined by Section 202 of the Ordinance as "a residential building containing not more than one dwelling unit." R.R. at 220a. Section 202 defines "building" as "[a]ny structure having a roof supported by columns or walls and intended for shelter, housing or enclosure of persons, animals, or property." R.R. at 216a. Importantly, Section 202 of the Ordinance defines the term "mobile home" as follows:
A transportable, single family dwelling intended for permanent occupancy, contained in one unit, or in two or more units designed to be joined into one integral unit capable of again being separated for repeated towing, which arrives at a site complete and ready for occupancy except for minor and incidental unpacking and assembly operations, and constructed so that it may be used without a [sic] permanent foundations.R.R. at 227a (emphasis added).
The trial court concluded that because a mobile home is defined as a "single family dwelling" it is included in the list of permissible residential uses in a B-3 Highway Business Zoning District. This Court has previously held that a mobile home satisfied a definition of "single family dwelling" very similar to that contained in the Ordinance. In Reed v. Zoning Hearing Board of West Deer Township, 377 A.2d 1020 (Pa. Cmwlth. 1977), this Court concluded that a single mobile home clearly fell within the definition of a "single-family dwelling," defined in the relevant ordinance as "[a] building designed for or occupied exclusively as a residence for only one family." Id., 377 A.2d at 1021. The Reed Court rejected the Township's argument that the ordinance's definition of "mobile home" disqualified it from being a single-family detached dwelling, where the definition did not explicitly describe it as such, but did provide that two such units permanently combined on site to form one immobile dwelling would constitute a single-family detached dwelling. Id. In finding for the property owner, the Court stated:
Restrictions imposed by zoning ordinances must be strictly construed; they may not be construed so as to restrict the use of land by implication. The Township here asks us to
infer from [the ordinance's] definition of a mobile home that a mobile home cannot be a single-family dwelling. Even if we were able to find support for such an inference in the definition, we could not have it prevail over a definition of a single-family dwelling clearly including a mobile home.Reed, 377 A.2d at 1021 (citation omitted).
The facts in the instant matter are even more compelling than in Reed. Here, the Ordinance's definition of "mobile home" explicitly describes a mobile home as a "single family dwelling." R.R. at 227a. Thus, we conclude that, pursuant to the provisions of the Ordinance, a mobile home is permissible in a zone that permits "single-family detached dwellings" and, thus, is a permissible use in a B-3 Highway Business Zoning District.
The Bowers contend that because mobile homes are specifically listed as a permitted use in an A-1 Agricultural Zoning District, the omission of mobile homes in the list of permitted uses in B-3 Highway Business Zoning District, implies that mobile homes are prohibited. In support of their argument, the Bowers rely on Bonasi v. Board of Adjustment of Haverford Township, 382 Pa. 307, 115 A.2d 225 (1955) and Crary Home v. DeFrees, 329 A.2d 874 (Pa. Cmwlth. 1974). In Bonasi, our Supreme Court addressed a zoning dispute between a beautician and the township. The beautician property owner was rendering services to patrons in a "B" residential zoning district that prohibited business use, but permitted a "professional office." Id., 382 Pa. at 309, 115 A.2d at 226. The property owner contended that, as a licensed hairdresser and beautician, she was engaging in a profession and thus her use of the property constituted the operation of a "professional office." Id. In finding against the property owner, the Court stated:
A reading of the Zoning Ordinance makes it crystal clear that the term 'professional office', as used in the enactment in relation to 'B' Residence Districts, was not intended to include a beauty shop. The Ordinance . . . provides for
'Personal service shop, tailor, barber, beauty, shoe repair, dress making shop and other personal service shop or store'. (Italics supplied.) Since the use of a beauty shop, described inter alia as a 'personal service shop', is specifically permitted as a business use, it is inconceivable that a similar use was intended as an accessory professional use in a 'B' Residence District. It is plain that the Ordinance did not so intend.Id., 382 Pa. at 310-11, 115 A.2d at 226.
In Crary Home, landowners intended to build several structures constituting a home for elderly indigents in an R-1 Single Family Residence District. The zoning ordinance allowed special exceptions for numerous enumerated uses and for "all other public and semi-public uses." Id., 329 A.2d at 876. The landowners sought a special exception based upon their contention that their intended use constituted a "public" or "semi-public" use. Id. In concluding that the intended use did not constitute a "public" or "semi-public" use as permitted in the R-1 Single Family Residence District special exception, this Court noted that R-2 Low Density Residence District special exceptions specifically identified and included the landowner's intended use. The Court stated:
'If a given use is not listed as permitted in one zoning classification but is permitted in a lower classification by specific reference, it is a fair inference that the use was considered and intentionally excluded from the higher zone. In these circumstances, the courts normally will not read any more general grouping which may be permitted in the higher district as including the lower use.' In the same section Ryan also notes, as a general principle, that the structure of the zoning ordinance itself provides the best guide to its interpretation.Crary Home, 329 A.2d at 877 (quoting Robert S. Ryan, Pennsylvania Zoning Law & Practice, § 4.2.1).
The Bonasi and Crary Home cases are distinguishable. In both cases, the ambiguities in the statutes were interpreted by way of a common sense examination of the entire statute. Where it was unclear what was meant by "public" or "semi-public", the Crary Home Court determined the intent of the drafters by considering the relevant language in the context of the entire ordinance. And, in Bonasi, where the meaning of "professional office" was unclear, our Supreme Court did the same.
In the instant matter, there is no ambiguity. The B-3 Highway Business Zoning District permits "Single-Family Detached Dwellings." A mobile home is defined by the Ordinance itself as a "single family dwelling." The Bowers ask that we infer that mobile homes were not intended to be permitted in the zoning district. However, we may not restrict Spencer's use of his land by implication. Reed. Thus, we conclude that the trial court properly determined that a mobile home is permissible in a B-3 Highway Business Zoning District.
For the above-stated reasons, the decision of the trial court is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 5th day of November, 2012, the Luzerne County Court of Common Pleas' December 19, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge