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WILLIAM J. KLEIN v. TOWNSHIP LOWER MACUNGIE (12/06/78)

decided: December 6, 1978.

WILLIAM J. KLEIN, APPELLANT
v.
TOWNSHIP OF LOWER MACUNGIE, ZONING HEARING BOARD AND GILINDO L. DALMAS, APPELLEES



Appeals from the Order of the Court of Common Pleas of Lehigh County in case of William J. Klein v. Township of Lower Macungie, Zoning Hearing Board, Nos. 617 and 618 January Term, 1977.

COUNSEL

James G. Kellar, for appellant.

J. Jackson Eaton, III, with him Butz, Hudders & Tallman, for intervenor.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Judge Craig.

Author: Rogers

[ 39 Pa. Commw. Page 83]

We affirm the order of the court below upholding the decision of the Zoning Hearing Board of Lower Macungie Township dismissing the zoning appeals of William J. Klein, the appellant in this Court, on the thorough and comprehensive opinion of Judge Donald E. Wieand following:

Whether by design or oversight the Zoning Ordinance of Lower Macungie Township fails to contain any reference to private tennis courts. The Zoning Hearing Board of the Township determined in this case that a tennis court is to be deemed a use which is accessory to a residential dwelling and, therefore, allowable as a matter of right. The Board also held that a tennis court, including lights and fences, was not a "structure" which would violate side and rear yard requirements imposed by the ordinance. These rulings have been challenged in two zoning appeals filed in this Court by William J. Klein, who owns the residence adjacent to the land on which Gilindo L. Dalmas intends to place a tennis court.

The Klein and Dalmas properties are located in a residential area known as "Executive Estates," which has been zoned LE-2. In such a zoning district, "[a]ccessory uses on the same lot and customarily incidental to the permitted use are permitted by right. The term 'accessory use' shall not include a business but may include the following uses which shall comply with all yard regulations. . . ." A tennis court is not one of the accessory uses specifically enumerated.

The phrase "accessory use or building" is defined in Section 201 of the Ordinance as follows:

[ 39 Pa. Commw. Page 84]

A subordinate use or building customarily incidental to, and located on the same lot occupied by the main use or building. The term Accessory Building includes but is not limited to private garage, garden or barn, a private playhouse, a private greenhouse, and a private swimming pool.

The dispute appears to be centered about the phrase "customarily incidental" to the main or permitted use. More specifically, a determination of the legislative intent 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 have reference to a use which, when present, is usually not the main use but incidental, secondary, or accessory to some other use? To phrase the question, of course, is to answer it. The ordinance uses the adverb "customarily" and not the adjective "customary." Hence, the intent must have been to modify the adjective "incidental" and refer to uses which are usually incidental to a main use. If the Township had intended to permit only incidental uses which were customary, it would have allowed uses which are "customary and incidental."

The Zoning Hearing Board could properly conclude from the record in this case that private tennis courts are customarily incidental to residential dwellings in the township. It was not necessary to such a determination that a majority or even a substantial number of residential properties in the neighborhood contain tennis courts.

The Board's interpretation of the ordinance was confirmed by the established practice followed by the Zoning Officer in Lower Macungie Township. She uniformly treated private tennis courts as ...


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