HomeMy WebLinkAbout92-651 CivilPAUL SANDNES and KATHLEEN IN THE COURT OF COMMON PLEAS OF
SANDNES; GARY DODEZ and CUMBERLAND COUNTY, PENNSYLVANIA
MAUREEN DODEZ; and MARSHALL
KOHR and DIANE KOHR, .
Appellants .
V. .
ZONING HEARING BOARD OF
THE BOROUGH OF NEW .
CUMBERLAND, .
Appellee .
and ,
JOSEPH G. SKELLY and .
BARBARA 0. SKELLY, .
Intervenors NO. 651 CIVIL 992
IN RE: ZONING
APPEAL
BEFORE SHEELY, P.J.,1 and OLER, J
ORDER OF COURT
AND NOW this 15th day of May, 1992, pursuant to the
accompanying Opinion, the Decision of the Zoning Dearing Board of
the Borough of New Cumberland, is AFFIRMED.
John J. McNally, III, Esq.
Attorney for Appellants
Richard W. Stewart, Esq.
Attorney for Appellee
Joseph G. Skelly, Esq.
Attorney for Intervenors
:rc
President
decision.
Judge
BY THE COURT,
II J.
Sheely did not participate in
this
PAUL SANDNES and KATHLEEN
SANDNES; GARY DODEZ and
MAUREEN DODEZ; and MARSHALL
KOHR and DIANE KOHR,
Appellants
V.
ZONING HEARING BOARD OF
THE BOROUGH OF NEW
CUMBERLAND, .
Appellee
and
JOSEPH G. SKELLY and
BARBARA 0. SKELLY,
Intervenors
IN THE COURT OF1 COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 651 CIVIL
IN RE: ZONING APPEAL
BEFORE SHEELY, P.J.' and OLER, J
1,992
OPINION AND ORDER OF COURT
OLER, J.
At issue in the present zoning appeal is a statutory
construction question: whether the zoning ordinance of the Borough
of New Cumberland permits a skateboard ramp as an accessory use to
a single-family detached dwelling in an R-1 Residential District.
For the reasons expressed herein, we hold that it does and affirm
the decision below.
Factual background. On September 9, 1991, the Assistant
Zoning Officer for the Borough of New Cumberland issued a permit'
to Joseph S. Skelly and Barbara Skelly (Intervenors) for
construction of a skateboard ramp in the backyard of their one -acre
lot containing a single-family detached dwelli*g in an R-1
1
decision. President Judge Sheely did not participate in this
z
The permit functioned as a building permit and a zoning
permit. N.T. 115, New Cumberland Borough Zoning Hearing Board
Hearing, November 7, 1991.
No. 651 Civil 1992
Residential District in New Cumberland.' The ramp, financed,
constructed and utilized by the Skellys' son and several friends,'
provoked mixed reactions from neighbors;' the permit was issued
pursuant to an opinion of New Cumberland Borough Solicitor Jon F.
LaFaver, Esq., that a skateboard ramp was a permitted accessory use
in connection with a residence in an R-1 Residential District.'
The New Cumberland Borough Zoning Ordinance' provides that a
single-family detached dwelling is one of the uses permitted by
3
Appellant's Exhibit 1, N.T. 9, 123, New Cumberland Borough
Zoning Hearing Board Hearing, November 7, 1991; N.T. 27, New
Cumberland Borough Zoning Hearing Board Hearing, December 17, 1991.
a N.T. 118, 127-31, New Cumberland BoroughZoningHearing
Board Hearing, November 7, 1991.
s See, e.g., N.T. 17-88, New Cumberland ,Borough Zoning
Hearing Board Hearing, November 7, 1991; N.T1. 103-08, New
Cumberland Borough Zoning Hearing Board Hearing, Deember 17, 1991.
The structure appears to have dimensions o� approximately
eighty-three feet in length, forty-five feet in vbidth, and nine
feet eight inches or seventeen feet in height, dep1nding upon the
proper location of the measurement. N.T. 58-60, 84,�1
New Cumberland
Borough Zoning Hearing Board Hearing, December 17,11991.
With respect to the ramp's height, the Zonig Officer, and
apparently the Solicitor, concluded that a ten-;oot limitation
applicable to certain accessory uses applied to buildings as
opposed to structures such as skateboard ramps. N.T. 23, New
Cumberland Borough Zoning Hearing Board Hearing, December 17, 1991;
see also Discussion, Decision of Zoning Hearing Board, January 23,
1992. Alternatively, in practice the Borough's measurement of the
ramp's height would have been at a point on the loot m which it
rose fewer than ten feet. Id. 25-26. Appellants' position is that
the ordinance contains no height limitation lapplicable to
skateboard ramps, because ramps are not themselves permitted.
Brief on Behalf of Appellants 10.
° N.T. 7, 96-98, New Cumberland Borough Zonin Hearing Board
Hearing, November 7, 1991; N.T. 7-9, 23, New Cu erland Borough
Zoning Hearing Board Hearing, December 17, 1991.
' Ordinance 468, October 5, 1981, Borough of I,ew Cumberland.
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No. 651 Civil 1992
right in an R-1 Residential District.' Residentia11 accessory use
regulations address by name animal shelters, de�ached garages,
greenhouses, swimming pools, tennis courts, patios, paved terraces,
and open porches, and "[o]ther [o]utbuildings.'!9 Regulations
pertaining to "other outbuildings" read as follows:
Maximum height - ten (10) feet[.]
No structure shall be attached to al building.
No structure shall be within five (15) feet
of any property line.
No structure shall be permitted betrween the
building setback line and thelstreet
line.lo
A "building" is defined in the ordinance as "[a]ny enclosed or
open structure other than a boundary or fence .. having a roof
supported by columns or walls and intended for the 6helter, housing
or enclosure of persons, animals, or chattels ....i11 A
"structure" is defined as "[a]ny object other than an interior
fixture, constructed, erected or attached to A fixed ground
location. "12
' §202.1
Ordinance 468
Cumberland.
Use Regulations], [ g ], Art. 200 [Residential Districts],
[Zoning Ordinance], October 5, 1981,IBorough of New
9 §202.9 [Residential Accessory Use Re ulatlons
g ], Art. 200
[Residential Districts], Ordinance 468 [Zoning Ordinance], October
5, 1981, Borough of New Cumberland.
io §202.9 [Residential Accessory Use Regulations], Art. 200
[Residential Districts], Ordinance 468 [Zoning Ordinance], October
5, 1981, Borough of New Cumberland.
11 §103.6 [Definition of Terms], Art. 100 [General
Provisions], Ordinance 468 [Zoning Ordinance], October 5, 1981,
Borough of New Cumberland.
i
iz §103.6 [Definition of Terms], Art.; 100 [General
Provisions], Ordinance 468 [Zoning Ordinance], October 5, 1981,
Borough of New Cumberland.
9
No. 651 Civil 1992
In addition, the ordinance contains the followjing provision as
a definition for "use":
The specific purpose for which lan or a
building .is designated, arranged, ntended,
or for which it is or may be occup ed or
maintained....
(a) Accessory Use - A use customarily
incidental and subordinate to the
principal use on the mai building
and located on the same of with
such principal use or ma.n building.
(b) Primary Use - The princial use
conducted on the premise .13
On October 2, 1991, several neighbors appealed to the New
Cumberland Borough Zoning Hearing Board from thelissuance of the
permit, pursuant to Section 909.1(a)(3) of the Pennsylvania
Municipalities Planning Code.14 Hearings were c�nducted on the
matter by the Board on November _7, 1991, and December 171 1991;
evidence at the hearings tended to show a history of skateboard
ramps in association with several residential properties in the
Borough. 15 On January 23, 1992, the Board filed its decision, with
findings of fact and discussion, sustaining the Zoning Officer's
is §103.6Definition of Terms], ], Art. 100 [General
Provisions], Ordinance 468 [Zoning Ordinance], O�tober 5, 1981,
Borough of New Cumberland.
Under the ordinance, permitted primary uses re elusive in
exclusive
nature. "Use regulations shall represent a major form of zoning
control constituting the only permitted primary use for
a specific
district. All other primary uses shall be prohibited." Id. §103.3
[Use Regulations].
14 Act of July 31, 1968, P.L. 805, as mended, 53 P.S.
§10909.1 (1991 Supp.); see also id., §913.3, asended, 53 P.S.
§10913.3 (1991 Supp.).
is N.T. 74-75, 97-99, 103, 108-12, New Cumberland Borough
Zoning Hearing Board Hearing, December 17, 1991.
5
No. 651 Civil 1992
issuance of the permit.16 On February 20, 1992, the neighbors
filed an appeal from the Zoning Hearing Board's Decision, and on
I
March 6, 1992, the landowners filed a Notice of Intlervention. Oral
argument was held by the Court on the appeal on Apkril 1, 1992. In
the appeal, appellants contend that a skateboard ramp is not a
permitted accessory use in an R-1 Residential District under the
New Cumberland Borough Zoning Ordinance because such a use is not
among those specifically enumerated," and because such a use is
not customarily incidental to a permitted primaryll,use."
Statement of the law. "In interpreting the lalpnguage of zoning
ordinances to determine the extent of the restriction upon the use
of the property, the language shall be interpreted, where doubt
exists as to the intended meaning of the language written and
enacted by the governing body, in favor of the property owner and
against any implied extension of the restriction." Act of July 31,
1968, P.L. 805, §603.1, as added, 53 P.S. §10603.11 (1991 Supp.).
"It is fundamental that restrictions imposed by zoning ordinances
are in derogation of the common law and must be strictly
construed.... Such restrictions must not be so construed as to
fetter the use of the land by implication. The permissive widest
use of the land is the rule and not the exception, unless
16 A dissenting opinion was filed by one of the three Board
members.
17 Brief on Behalf of Appellants 8-12. Appellants note the
maxim "expressio unius est exclusio alterius." I . 10.
le Brief on Behalf of Appellants 13-14.
6
No. 651 Civil 1992
specifically restrained ...."19 The absence of a specific
restriction which would prohibit an intended 11 use can be a
significant factor in the interpretation of such ordinances. 20
In addition, a zoning ordinance "must be read as whole with due
regard to the intent of the dlrafters,"21 it being pi-esumed that the
legislative body "intends the entire enactment tolbe effective. ,22
It is further to be presumed that the legislative body "does not
intend a result that is absurd ... or unreasonable. 1,23
With specific reference to the interpretation of the phrase
"customarily incidental ... to the principal use" in the definition
of an accessory use, the Pennsylvania Commonwealth 'Court has stated
as follows:
[A] determination of the legislative intent [as
to the meaning of the phrase "customarily incidental
to ... the main use"] would seem to be dependent on
whether the word "customarily" was intended to
modify the adjective "incidental" or the noun "use."
Does this language refer to a use which is customary
on residential properties or does it hake reference
a use which, when present, is usually not the main
use but incidental, secondary, or acces6ory to some
other use? To phrase the question, of Bourse, is to
19 Fidler v. Zoning Board of Adjustment, 408 Pa. 260, 265, 182
A.2d 692, 695 (1962).
20 See Burgoon v. Zoning Hearing Board, 2 Pa. Commw. 238, 277
A.2d 837 (1971).
21 Appeal of Mt. Laurel Racing Assn, 73 Pa. Commw. 531, 537,
458 A.2d 1043, 1045 (1983).
22 '
Act of December 6, 1992, P.L. 1339, §3, 1 Pa. C.S. §1922
(2) (1991 Supp.). Rules of Statutory construction} are applicable
to ordinances. Cooley v. East Norriton Twp., 78 Pa;. Commw. 11, 466
A.2d 765 (1983).
23 Act of December 6 1972 P.L. 1339
(1) (1991 Su PP•)• ' ' , §3, l; Pa. C.S. §1922
7
No. 651 Civil 1992
answer it. [An] ordinance [so drafted],uses the
adverb "customarily." Hence, the inten must have been
to modify the adjective "incidental" an refer to uses
which are usually incidental to a main se. If the
[municipality] had intended to permit oily incidental
uses which were customary, it would havo allowed uses
which are "customary and incidental."
Klein v. Township of Lower Macungie, 39 Pa. Commw.l81, 84, 395 A.2d
609, 610 (1978). Where such language is employed in defining an
accessory use, it is not necessary, to a determination that a
particular recreational use is customarily incidental to a
residential use, that the recreational use actually be contained on
a majority or even a substantial number of the residential
properties in the neighborhood. Id. (zoning hearing board's
holding that tennis court was permitted accessory use in
residential area upheld, notwithstanding absence of such item from
list of enumerated accessory uses and apparent lack of substantial
number of properties containing such use).
In this regard, it has been held that "[i]tems which are used
for the private, recreational purposes of a homeowner would
naturally exist near his home, as a use incidental to the
residential use of the home. The use of such items should
therefore be considered 'customarily incidental' to the permitted
uses in a residential district." Benoff v. Zoning Board of
Adjustment, 84 Pa. Commw. 309, 312-313, 479 A.2d 68, 70 (1984)
(zoning hearing board's determination that parking of recreational
boat on residential premises was not customarily incidental to
primary use, and thus not permitted accessory use„ held error).
Finally, with respect to the scope of revie4 of a court of
I�
N.
No. 651 Civil 1992
common pleas in an appeal from a zoning hearing board's decision
interpreting an ordinance, where no additional testimony has been
taken, "the scope of [the] inquiry is limited to the determination
of whether the [b]oard ... committed an error of law or a manifest
abuse of discretion. X24
Application of law to facts. In the present case, an
application of the foregoing principles of law militates against
adoption of the position of appellants. With respect to the
contention that a skateboard ramp is not a permitted use in an R-1
Residential District because such a use is not among those
accessory uses specifically enumerated, the proposition advanced
(a) would render superfluous the category of accessory uses
denominated "other outbuildings," as well as the general definition
of "accessory use," (b) would be inconsistent] with the rule
favoring the widest use of land in zoning ordinance construction,
(c) would disregard the absence of a specific restriction on the
subject in the ordinance, and (d) would result in a logical
conclusion that any item not specifically named iii the regulatory
scheme on accessory uses - e.g., a swing set - wouldl be prohibited,
an unreasonable result.
With respect to the contention that a skateboard ramp is not
a permitted use in an R-1 Residential District because such a use
is not customarily incidental to a permitted p*imary use, the
proposition advanced (a) would conflict with the general rule that
24
Wolfe v. Zoning Bd. of Adjustment, 14 Chestier Co. Rep. 296,
297 (1966).
P]
No. 651 Civil 1992
a private family recreational use is to be considered customarily
incidental to a residential use, (b) to the extent premised upon
the absence of a substantial number of such uses within the Borough
would be in derogation of the rule that "customarily" modifies
"incidental" rather than "use," ( c ) to the extent so premised would
result in a logical conclusion that no novel family recreational
use could qualify as an accessory use without first appearing,
unlawfully, on other residential premises, an unreasonable result,
(d) would disregard the absence of a specific restriction on such
uses in the ordinance, and (e) would be inconsistent with the basic
rule favoring the widest use of land in zoning ordinance
construction.
For these reasons, this Court does not find itself in a
position to conclude that the New Cumberland Borough Zoning Hearing
Board committed an error of law or a manifest abuse of discretion
in sustaining the action of New Cumberland's Assistant Zoning
Officer in issuing a permit for the skateboard ramp in question.
ORDER OF COURT
AND NOW, this 15th day of May, 1992, pursuant to the
accompanying Opinion, the Decision of the Zoning Kearing Board of
the Borough of New Cumberland, is AFFIRMED.
BY THE COURT,
s/ J. Wesley Oler, Jr. J.
10
No. 651 Civil 1992
John J. McNally, III, Esq.
Attorney for Appellants
Richard W. Stewart, Esq.
Attorney for appellee
Joseph G. Skelly, Esq.
Attorney for Intervenors
:rc
11