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APPEAL EMMANUEL BAPTIST CHURCH FROM DECISION ZONING HEARING BOARD NORTH CORNWALL TOWNSHIP REFUSING APPLICATION EMMANUEL BAPTIST CHURCH FOR A SPECIAL EXCEPTION. NORTH CORNWALL TOWNSHIP (09/17/76)

decided: September 17, 1976.

IN RE: APPEAL OF THE EMMANUEL BAPTIST CHURCH FROM THE DECISION OF THE ZONING HEARING BOARD OF NORTH CORNWALL TOWNSHIP IN REFUSING THE APPLICATION OF THE EMMANUEL BAPTIST CHURCH FOR A SPECIAL EXCEPTION. NORTH CORNWALL TOWNSHIP, APPELLANT


Appeal from the Order of the Court of Common Pleas of Lebanon County in case of In Re: Appeal of the Emmanuel Baptist Church from the Decision of the Zoning Hearing Board of North Cornwall Township in Refusing the Application of the Emmanuel Baptist Church for a Special Exception, No. 1940 of 1974.

COUNSEL

Robert C. Rowe, with him Calvin D. Spitler, and Spitler, Rowe & Kilgore, for appellant.

Robert W. Feeman, with him Egli, Reilly, Wolfson and Feeman, for appellee.

President Judge Bowman and Judges Kramer and Mencer, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Blatt. Judges Kramer and Rogers did not participate in the reargument. Opinion by Judge Blatt.

Author: Blatt

[ 26 Pa. Commw. Page 428]

In August of 1974 the Emmanuel Baptist Church (Church) applied to the Zoning Hearing Board (Board) of North Cornwall Township (Township) for a building permit to construct church facilities as a special exception on a 6 or 7 acre tract of land in a zoning district restricted to manufacturing uses. A hearing on the Church's request was held before the three members of the Board on August 29, 1974. Thereafter the Board denied the request, finding that it had no authority to authorize church uses in manufacturing

[ 26 Pa. Commw. Page 429]

    areas. The decision of the Board, however, was not made at a formal meeting, but was made by way of telephone conversations participated in by members of the Board, following which, on October 14, 1974, a written denial of the request was forwarded to the appellee. This was received on October 16, 1974. In its appeal to the Court of Common Pleas of Lebanon County, the Church argued among other things, that the Board violated the so-called Sunshine Law*fn1 (Act) by failing to render its decision during a public meeting. Without ruling upon that issue, but after examining the applicable provisions of the zoning ordinance, the court below concluded that the Township ordinance authorized this church use as a special exception in the district, and, therefore, ordered the Board to issue the appropriate building permit to the Church. North Cornwall Township has now appealed from that decision.

When a court considers a case upon facts as stipulated by the parties before it, as was done here by the court below, the court invokes its jurisdiction to decide the case de novo on the merits. See Cresko Zoning Case, 400 Pa. 467, 162 A.2d 219 (1960); Hauck v. Wilkes-Barre City Zoning Board of Adjustment, 2 Pa. Commonwealth Ct. 76, 276 A.2d 576 (1971). Our scope of review, therefore, is limited to a determination as to whether or not the lower court committed an error of law or abused its discretion. Borough of Baldwin v. Bench, 11 Pa. Commonwealth Ct. 410, 315 A.2d 911 (1974).

We believe, after examining the lower court's analysis of the applicable provisions of the zoning ordinance, that it erred in concluding that the Board should have granted a special exception for this church use of the property in question.

[ 26 Pa. Commw. Page 430]

The tract here involved is largely undeveloped farm land with a farm house, a barn, and other small buildings. It exists as a nonconforming agricultural use under the Township's zoning ordinance. The Church proposes to use the house as a parsonage and to construct a church building and other facilities on the undeveloped portion of the land. Under the ordinance a nonconforming use of a structure and premises may be changed to another nonconforming use as a special exception provided that the proposed use is equally as appropriate to the district or more appropriate than the existing use.*fn2 It is the express intent of the ordinance, however, to insure "that non-conformities shall not be used as grounds for adding other structures or uses prohibited elsewhere in the same district." (Emphasis added.) Section 14.1 of the North Cornwall Township Zoning Ordinance. In our view, given the clear intent of the ordinance, the added construction of church facilities on the undeveloped portion of the tract in question would be less appropriate to the manufacturing uses for which this district is now zoned than is the current ...


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