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DR. MARC G. GETMAN v. ZONING HEARING BOARD NORTHAMPTON TOWNSHIP (04/15/81)

decided: April 15, 1981.

DR. MARC G. GETMAN, APPELLANT
v.
ZONING HEARING BOARD OF NORTHAMPTON TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Dr. Marc G. Getman from the Decision of the Zoning Hearing Board of Northampton Township, No. 79-3780-05-5.

COUNSEL

Herbert K. Sudfeld, Jr., with him Richard P. McBride, Power, Bowen & Valimont, for appellant.

Theodore K. Warner, with him Robert C. Steiger, for appellee.

Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers. Judge Wilkinson did not participate in the decision in this case.

Author: Rogers

[ 58 Pa. Commw. Page 537]

Dr. Marc G. Getman has appealed from an order of the Court of Common Pleas of Bucks County affirming the decision of the Zoning Hearing Board of Northampton Township (Board) denying Dr. Getman's application for a special exception. We affirm.

Dr. Getman is a state-licensed optometrist. In November, 1978, Dr. Getman entered into an agreement for the purchase of a parcel of land, and a house to be built upon the parcel, located in the Deerfield North subdivision being developed by Montgomery Developers Company. The subdivision plans for Deerfield North had been approved by the governing body in 1976. At the time of this approval of the plans, Deerfield North was in an R-1 zoning district of the township's 1948 zoning ordinance. The owner of property in an R-1 district could have by way of special exception the right to use his or her property "[f]or the professional office of a doctor, dentist, teacher, artist, architect, musician, lawyer or magistrate or a similar profession." In 1977, Deerfield North was placed in the R-2 zoning district under a new township zoning ordinance. The occupational uses permitted by special exception in an R-2 district under the 1977 zoning ordinance are more restrictive than those previously permitted in an R-1 district under the 1948 zoning ordinance.

In December, 1978, Dr. Getman filed an application with the Board for a special exception for permission to use part of his house as a branch office for his optometry practice. At the Board's hearing,

[ 58 Pa. Commw. Page 538]

    the question of whether the 1948 zoning ordinance or the 1977 zoning ordinance applied was advanced. The Board did not decide this question; instead, it found that Dr. Getman was not a medical doctor; that at least fifty percent of his activity at his home would consist of the sale of glasses; and that the purveying of glasses is retail sales activity and that this would be Dr. Getman's principal business at his home. The Board concluded that Dr. Getman was not entitled to a special exception under either the 1948 or the 1977 zoning ordinance.

Dr. Getman appealed that Board's decision to the court below, which, without taking additional evidence, held that the Board erred in deciding that Dr. Getman was not entitled to a special exception under the 1948 zoning ordinance; that Dr. Getman's application should have been considered with reference to the provisions of the 1977 zoning ordinance because only that ordinance applied; and that Dr. Getman was not entitled to the special exception under the 1977 ordinance. Accordingly, the lower court affirmed the Board's denial of Dr. Getman's application. This appeal followed.

In a zoning appeal where the lower court did not receive any additional evidence, our review is limited to determining whether the Board abused its discretion or committed an error of law. Gable v. Springfield Township Zoning Hearing Board, 18 Pa. Commonwealth Ct. 381, 383, 335 A.2d 886, 887 (1975).

Dr. Getman does not argue in this appeal that he would be entitled to a special exception under the 1977 zoning ordinance. Rather, he contends that for three years after the approval of Montgomery Developers Company's subdivision plans by the Board, he is insulated from any adverse affects of a zoning change under ...


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