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HomeMy WebLinkAbout2007-728 Civil LYNN E. PALMER AND DEBBIE SUE PALMER, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DICKINSON TOWNSHIP AND THE DICKINSON TOWNSHIP BOARD OF SUPERVISORS, DEFENDANTS 07-0728 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY. J. AND HESS. J. OPINION AND ORDER OF COURT Bayley, J., April 11, 2007:-- Lynn E. Palmer and Debbie Sue Palmer have an equitable interest in 8 Kuhn Drive, Dickinson Township, Cumberland County, Pennsylvania, for which they filed an application for a conditional use. On January 15, 2007, the Dickinson Township Board of Supervisors concluded that, "The proposed use should not be approved as a conditional use." The Palmers filed an appeal which was briefed and argued on April 4, 2007. Having not taken additional evidence, our scope of review is whether the Board of Supervisors committed an error of law or abused its discretion. See Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An abuse of discretion is where findings are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Id. 07-0728 CIVIL TERM The Palmers' property is in a Medium Density Residential Office District under the Zoning Code of Dickinson Township. The Code provides: [T]he purpose of the Medium Density Residential Office (MDR-O) District is to provide reasonable standards for harmonious development, development of residences, apartments, townhouses, professional offices, financial institutions; and other uses which are compatible with medium and high density housing; to provide for public convenience and avoid traffic congestion problems. One of the permitted uses in a MDR-O District is "Public and private schools." Conditional uses, when authorized by the Board of Supervisors, include "Business services." The Code defines "Business services" as: A business which provides a specialized, specific, non-industrial service used to compliment a commercial enterprise and shall also include accessory retail, repair or assembly which pertains specifically to the business. The Palmers' property is at the end of a cul-de-sac. It has street frontage of 313 feet extending 200 feet off the street and 175 feet off the cul-de-sac, with 350 feet in the rear. There is a rectangular building on the tract measuring 100 feet on each side. The Palmers' proposal for the building is to have a bay area and nine rooms. The Board of Supervisors made the following findings of fact: The use would be conducted in a vacant building on the Premises. Access, parking and landscaping would be provided as indicated on the Site Plan and Revised Site Plan. The front (north) side of the building contains offices, restrooms and a room for classes. These rooms comprise approximately one-third of the interior floor space. The balance of the interior floor space would be used for storage of -2- 07-0728 CIVIL TERM inventory and motor vehicles, which would include a pick-up truck, step- vans and a motor home used in the business. Classes for approximately 20-25 students (employees of auto dealers and body shops) would be conducted in the facility, initially occurring one day per month, with the Applicants' stated goal of expanding the number of classroom days, and would be primarily focused on detailing instruction such as painting and rehabbing (detailing) of vehicles and OSHA training. The Premises would be used for bulk storage of reconditioning products for resale, and a forklift would be used in the operations. There would be tractor trailer deliveries of reconditioning and detailing products to the site approximately three times per week. There would also be daily deliveries by UPS trucks. Tractor trailers would be driven inside of the building to be unloaded. This area would also be used for instructional demonstrations when classes are conducted. Products would be delivered from the Premises by the Applicants' trucks to customers' facilities. There would be no "walk-in" retail sales. Ninety-nine percent of the product inventory is sold and delivered to outside customers and one percent is used to conduct the classroom activities. All business revenues are derived from the sale of products and the classroom instruction is generally provided free of charge or at a minimal fee. The schools are conducted as a means to enhance retail sales of products. The Board made a Conclusion Of Law that, "The proposed use does not qualify as a business service under the Code and is not permitted as conditional use." The Board stated: The use as described by the Applicants is not a business service. It is a products distribution center for the storage and shipping of product inventory being sold at retail to outside customers. It consists substantially and primarily of the distribution at retail of auto -3- 07-0728 CIVIL TERM reconditioning products, and only an insignificant part of the enterprise involves business service, i.e., classroom instruction. Under the circumstances, the inventory and distribution of retail products is the primary and substantial activity and the "business service," the classroom instruction, is a very insignificant part of the operations. In fact, the classroom instruction is actually a means to increase retail sales. The business service is accessory to the principal product distribution use, not vice-versa as required by the Code definition. In its brief, the Board argues: The Board does not dispute that the Zoning Chapter clearly allows the Palmers to use the property to conduct private schooling on detailing techniques. The approval or denial of the use of the premises for that purpose are not properly the subject of a conditional use proceeding. Notwithstanding, the Palmers attempted to link their main commercial activities to the schooling. They claimed that the area devoted to schooling comprised 55% of the floor area, but it was abundantly clear that those areas were used primarily for the product unloading, storage and distribution activities. It was only on the infrequent occasions when schools were in session, that those areas might be used for that purpose. Given their avowed purpose of conducting one school a month for 20-25 people, the dual use of the areas, the minimal amount of on-site products used in the schooling and the fact that no revenue was directly derived from the schooling, the Board properly found the schooling to be accessory, to a very minor extent, to the main distribution/warehouse activity. DISCUSSION What the evidence shows is that the Palmers seek to operate a sales business. Their customers will be detailing shops and automobile dealerships. The sale of product for the detailing and care of vehicles will be made off the business premises by employees who will drive relatively small trucks filled with product to customer locations where, in conjunction with sales, they will provide instruction and training in product use. The business premises in Dickinson Township will be used to park the trucks in -4- 07-0728 CIVIL TERM the bay where they will be loaded with product that has been previously delivered on tractor trailers, and stored inside. A few employees will work at the premises. Training classes in the use of the detailing products will be conducted inside the premises once, or at most, a few days each month. The Palmers maintain that the Board of Supervisors erred as a matter of law in concluding that their proposed use of their property is not "Business services," an allowable conditional use under the Zoning Code. To constitute "Business services," the business must provide a specialized, specific, non-industrial service used to compliment a commercial enterprise." (Emphasis added.) "Service" is defined in Merriam Webster's Collegiate Dictionary, Tenth Edition, to include "the work performed by one that serves," and "a facility supplying some public demand - telephone service - bus service," and "a facility providing maintenance and repair - television service."1 "Commercial" is defined as "occupied with or engaged in commerce or work intended for commerce." Under the Zoning Code, the business service used to compliment a commercial enterprise may include accessory retail, repair or assembly which pertains specifically to the business. The Code defines "Accessory Use" as, "a use customarily incidental and subordinate 1 In Malt Beverages Distributors Association v. Pennsylvania Liquor Control Board, 2007 WL 549724 (Pa Commw.), the Commonwealth Court of Pennsylvania stated that: In reading the plain language of a statute, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." 1 PaC.S. 1903(a). -5- 07-0728 CIVIL TERM to the principal use of the principal building and located on the same lot with such principal use or building." The Palmers maintain that their business is not industrial, it is highly specialized -6- 07-0728 CIVIL TERM as services are provided only to automobile dealerships and detailing shops "through consultation and maintenance services, and the sale of products related to their automobile businesses," and the services are specific because they are "limited to the training in the use of automobile products and equipment, and detailing techniques." They argue, "moreover the Zoning Code requires that the business services compliment a business enterprise. Not only does [their] business compliment its already existing enterprise, it compliments automobile dealerships and detailing shops that it services, which qualifies as commercial enterprises." This argument misses the point. Business services must be provided on the property in Dickinson Township to be an allowable conditional use of that property. The Palmers' business is retail sales of product off the business premises. Sales are the business, not an accessory use of the premises. The Palmers are not proposing to provide detailing services on or off their premises. The business premises are to be used for storage of merchandise and the loading of that merchandise onto trucks which are kept inside the premises for transport and sale at customer locations. The definition of a "warehouse" in Merriam Webster's Collegiate Dictionary, Tenth Edition, is "a structure or room for the storage of merchandise of commodities." That is what the proposed use of the business premises is, or as the Board of Supervisors stated in their decision: "[a] products distribution center for the storage and shipping of -7- 07-0728 CIVIL TERM product inventory being sold at retail to outside customers." 2 The Board did not commit an error of law or abuse its discretion. Therefore, the following order is entered. ORDER OF COURT AND NOW, this day of April, 2007, the within appeal, IS DENIED. By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Plaintiffs Edward L. Schorpp, Esquire For Dickinson Township :sal 2 A secondary use of the premises is for training in the use of detailing products. That is an allowable use under the Zoning Code, and does not require conditional use approval. -8- LYNN E. PALMER AND DEBBIE SUE PALMER, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DICKINSON TOWNSHIP AND THE DICKINSON TOWNSHIP BOARD OF SUPERVISORS, DEFENDANTS 07-0728 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY. J. AND HESS. J. ORDER OF COURT AND NOW, this day of April, 2007, the within appeal, IS DENIED. By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Plaintiffs Edward L. Schorpp, Esquire For Dickinson Township :sal