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APPEAL WILLIAM J. LOWNEY v. ZONING HEARING BOARD LOWER SOUTHAMPTON TOWNSHIP ET AL. WILLIAM J. LOWNEY (09/26/79)

decided: September 26, 1979.

IN RE: APPEAL OF WILLIAM J. LOWNEY, JR., ETC. ALFRED E. RENSON AND PATRICIA N. RENSON, HIS WIFE ET AL.
v.
ZONING HEARING BOARD OF LOWER SOUTHAMPTON TOWNSHIP ET AL. WILLIAM J. LOWNEY, JR., APPELLANT



Appeal from the Order of the Court of Common Pleas of Bucks County in cases of In Re: The Appeal of William J. Lowney, Jr., from the Lower Southampton Township Zoning Board of Adjustment, No. 76-3505-05-5; and Alfred E. Renson and Patricia N. Renson, his wife; Charles R. McGonigle and Constance McGonigle, his wife; Donald Wenger and Hilda M. Wenger, his wife; Olivia R. Wagher, now by marriage Olivia Thompson; Phillip L. States and Sharon L. States, his wife; Lavern G. Lampman and Elizabeth J. Lampman, his wife; Joseph V. McIlhinney; Jeanne B. Fletcher; Peter J. Alfano v. Zoning Hearing Board of Lower Southampton Township and Lower Southampton Township, No. 76-10656-05-5.

COUNSEL

S. Allen Needleman, with him Kenneth L. Mirsky, Paul F. Gilligan, Jr., and Needleman, Needleman, Caney, Stein & Talty, Ltd., for appellant.

E. Dillwyn Darlington, and Ronald J. Smolow, for appellees.

Judges Crumlish, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 46 Pa. Commw. Page 215]

William J. Lowney sought a variance and/or a special exception to build a kennel on a five-acre parcel for the purpose of boarding and grooming dogs on the industrially-zoned property where he and his family reside. The Zoning Hearing Board of Lower Southampton Township on remand from the lower court granted the application; the Bucks County Common Pleas Court reversed. We reverse the court below.

Lowney's initial application to the Board for a variance or special exception from the terms of the zoning ordinance to construct and operate a dog kennel on his land was denied, the Board reasoning that the requested relief would have to come by way of a zoning change. The Bucks County trial court, on appeal, remanded to the Board to supplement the record. Following the remand hearing, the Board issued a decision favorable to Lowney.*fn1 Upon appeal, the

[ 46 Pa. Commw. Page 216]

    court below reversed the Board's grant of a special exception holding that it had committed an abuse of discretion and an error of law. We disagree and reverse.

Since the court below took no additional evidence, our scope of review is limited to a determination of whether the Board's findings are supported by substantial evidence or whether the Board committed an error of law. Higging v. Township of Radnor, 13 Pa. Commonwealth Ct. 195, 318 A.2d 761 (1974).

In approving Lowney's application the Board found: (1) that no kennel exists in the Township and that one is needed; (2) that a kennel would in no way be detrimental to the safety, health or welfare of the community but would, in fact, be of benefit to the community; and (3) that the proposed use is similar to other permissible uses in an industrially-zoned area. The Board, citing Section 703 9-H*fn2 of the zoning ordinance which permits "any use of the same general character" granted the requested relief and attached several conditions: (1) that it conform to the submitted plot plan; (2) that it be soundproofed, air conditioned, and enclosed; (3) that no animals be given or sold for experimentation purposes or destroyed on the premises; (4) that there be no commercial sales of animals on the premises; (5) that the facility comply in all respects with county, state and township regulations; and (6) in the event the proposed facility is not used as a kennel for a two-year period, that the property then be restricted to those uses permitted in an industrial area.

We have undertaken a careful review of the record and we cannot conclude that the zoning board committed a manifest abuse of discretion or error of law in ...


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