Appeal from the Order of the Court of Common Pleas of Bucks County in case of Katherine Draving and John C. Draving v. Lower Southhampton Township Zoning Hearing Board and Lower Southampton Township, No. 75-6379-03-5.
Ronald J. Smolow, with him Groen, Smolow & Burkett, for appellant.
E. Dillwyn Darlington, with him Cadwallader, Darlington & Clark, for appellees.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 40 Pa. Commw. Page 244]
This is an appeal by Lower Southampton Township from an order of the Court of Common Pleas sustaining the Dravings' appeal from the Zoning Hearing Board's (Board) order which denied their application for a grant of a variance.
The Zoning Officer issued a violation notice ordering the Dravings to cease and desist from engaging in the "unauthorized commercial use of land zoned exclusively for residential use." The Dravings appealed that order to the Board, claiming that their ceramic operation was a permitted accessory "studio" use or "home occupation" and alternatively sought a variance.
[ 40 Pa. Commw. Page 245]
The Board denied the Dravings' application on the grounds that their ceramic operation did not qualify as a permitted accessory use under the zoning ordinance, and that appellants did not show such hardship as would justify the grant of a variance.
The Dravings argue that what they call a "ceramic studio" is a permitted accessory use under Article III, Section 301(12) of the Zoning Ordinance of Lower Southampton Township which states in pertinent part:
Accessory use on the same lot with and customarily incidental to any of the foregoing permitted uses. The term 'accessory use' shall not include a business but shall include: (a) professional office or studio and (b) room for home occupation; provided that such office, studio or rooms for home occupation shall be located in a dwelling in which the practitioner resides, or in a building accessory thereto, and no goods shall be publically [sic] displayed on the premises.
The Board held that the Dravings' use is not an accessory use under this provision. The Board also denied a variance.
The lower court vacated the Board's order without taking additional evidence, which limits our review to a determination of whether the zoning board abused its discretion or committed an error of law. Ottaviano v. Zoning Board of Adjustment of ...