Appeal from the Order of the Court of Common Pleas of Bucks County in case of Warminster Area Child Day Care Association, Inc. v. The Upper Southampton Township Zoning Hearing Board, No. 75-4183-08-5.
John P. Koopman, with him William J. Carlin, and Begley, Carlin, Mandio & Popkin, for appellant.
Theodore K. Warner, Jr., with him Robert C. Steiger, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Rogers.
[ 35 Pa. Commw. Page 542]
Warminster Area Child Day Care Association, Inc. (hereinafter called the Center)*fn1 appeals an order of the Court of Common Pleas of Bucks County affirming a decision of the Upper Southampton Township Zoning Hearing Board (Board) sustaining an order of a zoning officer directing the Center to cease and desist its summer day camp operations.
Since the year 1966, the Center has operated two programs for the protective care of children of working parents. One provides year-round daytime care and supervision for preschool children, ages 3 to 5, and the other provides daytime care for school aged children, ages 6 to 13, during the summer months when the children do not attend school. Until the events of this case, to be described, the programs were conducted at separate locations. In April 1971, the Center acquired a lot containing about 2.6 acres improved with a building, located in the R-1 Residential zoning district of Upper Southampton Township. The Center had received confirmation from a township
[ 35 Pa. Commw. Page 543]
zoning officer on March 9, 1971 that the operation of a child day care center, which the zoning officer equated with one use of property as a school, was a permitted use in the R-1 zone under Section 400-2 of the then effective Township Zoning Ordinance (hereinafter referred to as old ordinance). In October of 1971, the Center sought and obtained from the Township Zoning Hearing Board a dimensional variance permitting it to construct an addition to its building. In that proceeding the Center described the proposed use of its premises as that of "Nursery School." A building permit for the construction was issued by the township zoning officer on May 2, 1972, stating the use of the premises as "Day Care Center."
On May 9, 1972, before the Center occupied its property, the township enacted a new Zoning Ordinance (hereinafter referred to as new ordinance), with an effective date of May 14, 1972. The new enactment permitted child day care facilities in the R-1 Zone (in which the Center's property was again located) only as a conditional use; that is, a use permitted conditioned upon approval of the township supervisors. The Center began operating its preschool child care program on the subject premises in February of 1973. It decided to move its summer program for the 6 to 13 year olds to the same location in January of 1974 and did so in the summer of that year. This latter program was simply a summer camp conducted outdoors on a portion of the 2.6 acre tract. The program was appropriately called Stars and Stripes Day Camp.
On July 3, 1974, the township zoning officer served the following order on the Center:
Stars and Stripes Day Camp Operation is not a proper use under the Zoning Ordinance of Upper Southampton Township as it is an improper and illegal extension of prior use as
[ 35 Pa. Commw. Page 544]
a Nursery Day Care Center. This use if permitted at all would require a petition to the Board of Supervisors for a Conditional Use [pursuant to Section 405(19) of Ordinance No. 119].
Therefore all use of premises for outdoor use for children of ages 6 to 13 years of age, is to cease at once, until further ordered by the Board of Supervisors. (Emphasis in original.)
The Center appealed the cease and desist order to the Board which made the following pertinent findings of fact and conclusions of law:
15. Camp Stars and Stripes had a staff consisting of college students who served as counselors and youth corps and manpower workers who acted as aides. There was, at most, one certified teacher amongst the staff of Camp Stars and Stripes.
16. Neither Federal, State, or County Governments requires certified teachers for the operation of a program such as Camp Stars and Stripes.
17. Neither the Federal, State, or County Governments provides regulation or guidelines for the operation of a program such as Camp Stars and Stripes.
18. Camp Stars and Stripes uses the grounds at 460 Maple Avenue for various portions of its program. However, it does not use the structure located thereon for its activities, except on infrequent ...