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NORMAN DESOUSA AND RAYMOND GARFINKLE v. ZONING HEARING BOARD WHITEHALL TOWNSHIP. WHITEHALL TOWNSHIP (05/30/75)

decided: May 30, 1975.

NORMAN DESOUSA AND RAYMOND GARFINKLE, T/A SPRING RIDGE APARTMENTS,
v.
THE ZONING HEARING BOARD OF WHITEHALL TOWNSHIP. WHITEHALL TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Norman Desousa and Raymond Garfinkle, t/a Spring Ridge Apartments v. The Zoning Hearing Board of Whitehall Township, No. 410 April Term, 1974.

COUNSEL

F. Paul Laubner, with him Harry A. Kitey, for appellant.

Henry S. Perkin, with him Nabhan & Nabhan, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 19 Pa. Commw. Page 368]

This is an appeal from an order of the Court of Common Pleas of Lehigh County reversing the decision of the Zoning Hearing Board of Whitehall Township (Township) which denied the request of Spring Ridge Apartments (Spring Ridge) for an alterations permit to partially modify a conforming structure to two conforming uses. We reverse.

It is now a well-established rule that where, as here, a lower court does not take any additional testimony, our scope of review is restricted to a determination of whether or not the zoning hearing board committed an abuse of discretion or an error of law. Doran Investments v. Muhlenberg Township Board of Commissioners, 10 Pa. Commonwealth Ct. 143, 309 A.2d 450 (1973).

The cognizable facts in this case reveal that Spring Ridge proposes to rent the lower level of K Building in its large apartment complex to Development Pre-School, a professional organization, for the purpose of conducting a preschool learning center which would service the general preschool population of the area. It is the intent of Development Pre-School to utilize the other apartment complex facilities also, including the playground, pool, and parking areas, during the course of its teaching day. About thirty part-time students are expected to attend the school. K Building's upper levels presently consist of twelve one-bedroom apartments, while the lower level is used only by the complex owners for temporary storage. Both apartmental and educational uses are permitted uses in this R-2 zone.

[ 19 Pa. Commw. Page 369]

K Building is a small part of Spring Garden's large garden apartment complex, which consists of approximately 308 apartment units. Tenants are entitled to the use of all facilities of the complex. The Spring Garden complex was originally approved as a whole unit when the plans were submitted to the Township before its original construction. At that time the lower level of K Building was designated as a storage area.

The threshold issue here is whether or not, under this particular ordinance, a second permitted use may be added to a building that already contains one permitted use. We think not.

Part five of the Whitehall Township zoning ordinance ...


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