Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of Christoforo A. Seidita v. Board of Zoning Appeals of the City of Scranton, No. 815 January Term, 1977.
Joseph P. Kane, for appellant.
Sidney Z. Levy, with him Levy, Scott, Weinberger & Hart, for appellee.
Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Crumlish, Jr.
[ 41 Pa. Commw. Page 341]
Christoforo A. Seidita applied to the Zoning Board of the City of Scranton (Board) for a special exception to use certain premises as a day care center for young children. The Board denied Seidita's application. Seidita appealed to the Court of Common Pleas of Lackawanna County, which, without taking further testimony, held that the Board's denial of the special exception constituted "an indefensible abuse of discretion and an error of law." The Court also held that Seidita was entitled to the exception unless there was persuasive proof that the health, safety and morals of the community would be affected. Finding no such proof, the Court reversed the Board.
Where the court below has taken no additional evidence, our scope of review is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Alfano v. Zoning Hearing Board of Marple Township, 14 Pa. Commonwealth Ct. 334, 324 A.2d 851 (1974).
The premises in question lie in an R-2 residential district under the terms of the zoning ordinance in question. There is no doubt that the intended use of the premises is not a "permitted use" in R-2 districts.
[ 41 Pa. Commw. Page 342]
Seidita claims that the intended use is a special use exception within the ordinance's definition of "appropriate public uses." That term is defined as follows:
Use Class 17. Appropriate Public Uses. Includes public and quasi-public uses of a welfare, educational, religious, recreation and cultural nature, and dormitories, fraternities, and religious homes accessory to such uses, radio and television transmission or receiving towers; and essential public utilities that require enclosure within a building, except for telephone central office buildings and telephone booths.
Such Public Uses permitted by the Board as a Special Use shall be appropriate to the character of the District in which it is proposed and to the area which it will serve. Such appropriate Public Uses shall have adequate access, shall provide off-street parking and loading as specified in section 6.100, shall provide necessary landscaping and screening to protect adjoining areas, and shall comply with the following lot, yard and building regulations. . . .
"Appropriate public uses" are permitted in all of the zoning districts under the terms of the ordinance. Seidita contends, and the lower court found, that the proposed children's ...