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decided: December 12, 1980.


Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of James E. Kopelman v. The Zoning Hearing Board of the City of New Kensington, No. 159 of 1979.


R. E. Valasek, for appellant.

John N. Scales, with him David T. Cofer, Scales and Shaw, for appellee.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 55 Pa. Commw. Page 307]

Appellants, as objectors in this zoning case, appeal from the Court of Common Pleas of Westmoreland County, which reversed the Zoning Hearing Board of the City of New Kensington (board) and ordered the issuance of a zoning certificate to appellee James E. Kopelman as requested in his application for a special exception under the New Kensington zoning ordinance.

[ 55 Pa. Commw. Page 308]

Kopelman sought to construct two restaurants on a parcel of about two acres*fn1 in an area zoned "R-4 Transitional Residential District"; under the ordinance "Eating Places" are allowed in R-4 districts under stated special exception standards. On the tract adjacent to Kopelman's is a restaurant previously authorized by special exception. The remaining perimeter of Kopelman's property adjoins public streets and single-family dwellings.

The board denied Kopelman's application. Without taking new evidence, the common pleas court reversed the board because of legal error in the board's interpretation of Section 307 of the ordinance, the special exception provision which permits an "Eating Place" in R-4 districts "upon lots adjoining a legally permitted use other than a one or two-family dwelling."*fn2

The initial issue in this case is whether the adjoining special exception restaurant use is such a "legally permitted use" as Section 307 requires to qualify a subject lot for a special exception. We agree with the common pleas court that it is, and thus that the board erred in refusing the requested special exception on that ground.

As Judge Loughran stated:

[The ordinance] does not define permitted use or special exception. However, . . . it must be noted that the ordinance clearly states that

[ 55 Pa. Commw. Page 309]

    those uses not specifically listed or defined in the categories of permitted uses or special exceptions shall not be permitted. Accordingly, by the ordinance itself, permitted uses and special exceptions both fall within permitted uses. The difference being that special exceptions are permitted uses that are qualified and in this case must comply, among other requirements, with Section 307 of the ordinance. Section 307 defines when a special exception would be permitted and therefore must be taken in its broadest sense and the landowner given the benefit of the least restricted use and enjoyment. Further, where definition is lacking, interpretation must be applied according to the common and approved usage. Brunner v. Zoning and Hearing Board of Upper Makefield Township, 12 Pa. Commw. 109, 315 A.2d 359 (1974). . . . Applying these legal precepts to the present case, this court has no recourse but to construe the meaning of 'legally permitted use' as one that is a permitted use or one that is allowed to exist by provision of the Zoning Ordinance or by compliance with the zoning provision becomes a permitted use such as a special exception. Section 208 of the ordinance is consistent with this interpretation and in fact refers to special exceptions as permitted uses.*fn3

We grant that, in technical zoning jargon, "permitted use" usually refers only to uses allowed absolutely and unconditionally. However, Section 307 here does

[ 55 Pa. Commw. Page 310]

    not say "permitted use", but, rather, uses the phrase "legally permitted use", an apparently broader class than those "permitted uses" enumerated in Section 208. Thus, "legally permitted use" suggests not only uses permitted absolutely by designation, but also uses "permitted" conditionally -- but none the less legally -- pursuant to administrative process.

Objectors also contend that the board properly denied Kopelman's application because his property abuts several occupied single-family dwellings, urging us to interpret Section 307 to preclude special exceptions uses on lots which adjoin one or two-family dwellings without regard to the nature of any other adjacent permitted use. We decline to do so. A fair reading of Section 307 requires only that the adjacent legally permitted use, which is to qualify the subject tract for a special exception, cannot itself be a one or two-family dwelling.

Finally, objectors contend that they fulfilled their duty to present evidence sufficient to establish the proposal as unduly detrimental to health, safety or general welfare. Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980).

Although only one member of the board's majority expressed traffic considerations as a basis for refusing the application, objectors put their greatest stress on the position that purported abnormal traffic patterns which may result from the restaurant uses provide sufficient justification for denying the special exceptions. We disagree, and adopt Judge Loughran's analysis.*fn4

[ 55 Pa. Commw. Page 311]

Further, much of the abnormality propounded by objectors is premised on the assumption that drivers will use the restaurants' parking areas as illegal shortcuts and will ignore directional restrictions when actually patronizing the businesses. Possible driving violations are not a natural effect of the use, and are not relevant considerations in proceedings under a zoning ordinance. See VanSciver v. Zoning Board of Adjustment, 396 Pa. 646, 656, 152 A.2d 717, 723 (1959).

Accordingly, we affirm the common pleas court.


And Now, this 12th day of December, 1980, the September 10, 1979 order of the Court of Common Pleas of Westmoreland County, at No. 159 of 1979, is affirmed.



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