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

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 ...


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