Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Thomas Heck v. The Zoning Hearing Board for Harveys Lake Borough, Pennsylvania, No. 5095 of 1976.
Richard S. Kempes, with him Allan M. Kluger, and Hourigan, Kluger & Spohrer, Assoc.,for appellant.
Santo A. Agati, for appellee.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 39 Pa. Commw. Page 572]
Thomas Heck (appellant) has appealed to this Court from an order of the Court of Common Pleas of Luzerne County, which affirmed the denial of his application for a special exception by the Zoning Hearing Board of Harveys Lake Borough (Board).
The appellant owns a parcel of shoreline property in the borough of Harveys Lake zoned S-1. On the property is a one-story structure containing a storage/entertainment area and having a height of approximately eight feet, which is approximately two feet above the level of the adjacent road. The appellant proposes to erect a second-floor game room on top of this structure, which would make the height of the structure approximately seventeen feet, or approximately eleven and one-half feet above the adjacent road level. Because the maximum height permitted in a district zoned S-1 is one story or twelve feet, he sought a special exception under Section 4.220 of the Harveys Lake Borough Ordinance (Ordinance), which provides in part:
In any district other than the R-1 or R-2 Districts, a building may be permitted to exceed the height limit of the district where it is to be located, and be erected up to a height of not more than 6 stories or 75 feet, whichever is
[ 39 Pa. Commw. Page 573]
less, provided that it can be shown that adequate fire protection will be available, and that such modification shall be approved by the Zoning Hearing Board upon the review and approval of the Planning Commission only in accordance with the procedures established for the approval of a Special Exception.
The Board denied the exception because (1) it determined that Section 4.220 was not applicable to the S-1 district, and (2) it found that the special exception would be against the best interests and welfare of the community. The Court of Common Pleas sustained the position and reasoning of the Board, and this appeal followed.
Initially we note that the lower court took no additional evidence, and our scope of review, therefore, is limited to determining whether or not the zoning board abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record. McCarron v. Zoning Hearing Board, 37 Pa. Commonwealth Ct. 309, 389 A.2d 1227 (1978).
The first issue raised is whether or not the Board was correct in its ruling that Section 4.220 of the Ordinance is not applicable in the S-1 district. The Board's position is that Section 4.220 is rendered ...