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C. HOWARD MUSE ET UX. AND CHARLES H. MUSE v. ZONING HEARING BOARD BEN AVON HEIGHTS BOROUGH AND SHANNOPIN COUNTRY CLUB. CHARLES H. MUSE (06/23/80)

decided: June 23, 1980.

C. HOWARD MUSE ET UX. AND CHARLES H. MUSE, JR.
v.
THE ZONING HEARING BOARD OF BEN AVON HEIGHTS BOROUGH AND SHANNOPIN COUNTRY CLUB. CHARLES H. MUSE, JR., APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of C. Howard Muse et ux. and Charles H. Muse, Jr. v. The Zoning Hearing Board of Ben Avon Heights Borough and Shannopin County Club, No. SA 605 of 1975.

COUNSEL

Robert W. Watson, Jr., of Reed, Smith, Shaw & McClay, for appellant.

Robert B. Shust, Tener, Van Kirk, Wolf & Moore, with him Thomas F. Nelson, Kirkpatrick, Lockhart, Johnson & Hutchinson, for appellees.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 52 Pa. Commw. Page 289]

Charles H. Muse, Jr. (objector) appeals from the May 1, 1979 order of the Court of Common Pleas of Allegheny County affirming the action of the Zoning Hearing Board of Ben Avon Heights Borough (board) which dismissed appellant's appeal from the grant of a permit to intervening appellee Shannopin Country Club (Shannopin) for construction of tennis courts on Shannopin property in the borough.

The Ben Avon Heights Zoning Ordinance of 1952 classified the entire borough as a residential district; there is no question that Shannopin, before and since that time, has maintained and operated a country club on its property. Currently, the club offers golf, swimming, platform or paddle tennis, and skeet shooting, and also various activities conducted in its clubhouse. In late 1974, Shannopin's officers applied for and were granted a permit to construct tennis courts in an area of Shannopin's property which shares a boundary with objector's land. On appeal, the board affirmed the zoning officer's grant of the permit for the proposed courts as a reasonable expansion or extension of Shannopin's non-conforming use. Judge Watson, of the court below, without taking additional evidence, affirmed the board's decision, and this appeal followed, requiring us to decide whether the board abused its discretion or erred as a matter of law.*fn1

In this case, accepting the legal non-conforming use status of Shannopin's country club, we must be guided by the now well-established principles governing

[ 52 Pa. Commw. Page 290]

    expansion of such uses, under general rules apart from specific ordinance provisions. Those principles were capsulized in Philadelphia v. Angelone, 3 Pa. Commonwealth Ct. 119, 280 A.2d 672 (1971), where Judge Rogers wrote:

With respect to the question before us in this matter, certain principles have been developed which are clear, reasonable and consistent with constitutional principles. Structures may be erected on open land previously devoted to a non-conforming use, as of right. However, the erection of structures upon land not previously so used, may only be accomplished by way of variance. . . . Pierce Appeal, 384 Pa. 100, 119 A.2d 506 (1956); Mack Appeal, 384 Pa. 586, 122 A.2d 48 (1956).

3 Pa. Commonwealth Ct. at 128, 280 A.2d at 677.

Thus, in reviewing the board's approval of the expansion without a variance, the threshold question is whether the land on which Shannopin proposes to locate the courts has been devoted to the country club's non-conforming use. The record reveals that the proposed location has been consistently maintained, at least as a part of Shannopin's landscaped greensward, and that it has been used for intermittent golf instruction, as part of a practice area, and to some extent for vehicle parking. To counter that evidence of usage, appellant points to the testimony of Shannopin's golf pro, which indicated that the proposed site was never the intended target area, but was rather the inadvertent off-target ...


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