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MUNICIPALITY BETHEL PARK v. ZONING HEARING BOARD MUNICIPALITY BETHEL PARK ET AL. EUGENE E. LAY (02/13/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 13, 1981.

MUNICIPALITY OF BETHEL PARK
v.
ZONING HEARING BOARD OF THE MUNICIPALITY OF BETHEL PARK ET AL. EUGENE E. LAY, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Municipality of Bethel Park v. Zoning Hearing Board of the Municipality of Bethel Park and Eugene E. Lay, No. SA 782 of 1978.

COUNSEL

John M. Means, Markel, Schafer & Means, P.A., for appellant.

Victor R. Delle Donne, Baskin and Sears, for appellee.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 56 Pa. Commw. Page 610]

The appellant, Eugene E. Lay, seeks review of an order of the Court of Common Pleas of Allegheny County which sustained the appeal of the Municipality of Bethal Park (Bethel Park) from a decision of the Zoning Hearing Board of Bethel Park (Board).

The appellant owns a half-interest in a restaurant-bar known as the Bear's Den which he has operated in Bethel Park since May of 1969. In 1978, he applied for a building permit and approval to construct an open deck area attached to the rear of the restaurant-bar and on May 22, 1978, the zoning officer of Bethel Park denied that application on the grounds that pursuant to Section 61-27B of the Bethel Park Zoning Ordinance, Ordinance No. 61-19-66A, as amended,*fn1 any such addition must be enclosed. On appeal of that denial to the Board a hearing was conducted, evidence was taken and the Board granted a variance to build the deck, finding that:

1) the proposed deck is a natural expansion of [a] non-conforming use; 2) the deck should

[ 56 Pa. Commw. Page 611]

    alleviate crowd congestion within and in front of the existing structure; 3) the use of the deck will be accessory use customarily incidental to the existing use of the premises; and 4) the use of the deck will pose no additional hardship with respect to the use and enjoyment of the adjacent properties.

Bethel Park then appealed to the Allegheny County Court of Common Pleas which appointed a referee to take evidence; thereafter he submitted proposed findings of fact, conclusions of law and a proposed final order to the Court, and exceptions were filed and argued. The court below ultimately held that the deck was an expansion of a nonconforming use which must be enclosed pursuant to the requirements of the zoning ordinance and reversed the Board's approval of the variance.

The appellant contends that the deck in question is an accessory use exempted from the enclosure requirements of Section 61-27B*fn2 of the Bethel Park Ordinance. Section 61.8 of the zoning ordinance in question defines accessory use:

A . . . use customarily incidental and subordinate to the principal use and located on the same lot with such principal use. . . .

The term "use" is also defined in that section as:

[t]he specific purpose for which land or a building is designed, arranged, intended or for which it may be occupied or maintained. The

[ 56 Pa. Commw. Page 612]

    term "permitted use" or its equivalent shall not be deemed to include any non-conforming use.

This definition of accessory use requires that the activity involved must itself be a use and then that such use must be customarily incidental and subordinate to the principal use. There is no dispute here that the deck was designed for the specific purpose of serving food and drink and is, therefore, a use under the zoning ordinance. The entire restaurant-bar, however, was designed to serve food and drink and, consequently, the use of the deck must be considered to be identical to that of the restaurant-bar and not as incidental or subordinate to the main use. See, Klein v. Township of Lower Macungie, 39 Pa. Commonwealth Ct. 81, 395 A.2d 609 (1978). It is nothing more than a physical extension of the interior of the building and as such constitutes an expansion of a nonconforming use*fn3 rather than an accessory use related, but inferior, to the principal use.

We will therefore affirm the order of the lower court which reversed the Board's approval of the variance and required the appellant to enclose the deck in accordance with the requirements of the zoning ordinance.*fn4

[ 56 Pa. Commw. Page 613]

Order

And, Now, this 13th day of February, 1981, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.

Disposition

Affirmed.


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