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TIMBER PLACE ASSOCIATES v. PLYMOUTH TOWNSHIP ZONING HEARING BOARD (06/09/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 9, 1981.

TIMBER PLACE ASSOCIATES, APPELLANT
v.
PLYMOUTH TOWNSHIP ZONING HEARING BOARD, APPELLEE

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Timber Place Associates v. Plymouth Township Zoning Hearing Board, No. 79-11659.

COUNSEL

Philip R. Detwiler, Maerz, Detwiler & Watt, for appellant.

Herbert F. Rubenstein, with him Norman Ashton Klinger, Beeghley, Rubenstein and Moore, for appellee.

Arthur Lefkoe, Wisler, Pearstine, Talone, Craig & Garrity, for intervenor, Plymouth Township.

Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Williams

[ 59 Pa. Commw. Page 583]

Timber Place Associates (appellant) appeals from an Order of the Court of Common Pleas of Montgomery County. The lower court's Order affirmed the denial by the Zoning Hearing Board of Plymouth

[ 59 Pa. Commw. Page 584]

Township (Board) of appellant's application for a special exception.

The appellant is the owner of a high-rise apartment building known as Place One Apartments located in Plymouth Township (Township), Montgomery County. In March, 1979, appellant filed an application with the Board for a special exception to use the first two floors of Place One Apartments for general office space, and for accessory commercial uses to serve the needs of the tenants of Place One. The application was subsequently amended to limit appellant's request to use of the ground floor only for professional office space. The appellant proposes to rent units on the ground floor of the building as offices for doctors, lawyers, and other professionals.

The Board conducted a hearing on appellant's application on April 30, 1979. This hearing was attended by approximately one hundred and forty-five of the tenants of Place One Apartments. The vice president of Place One Tenants Association appeared and presented a petition opposing appellant's application; the petition was signed by three hundred and fourteen protestants, representing two hundred and twelve households in Place One Apartments. Six other tenants testified against appellant's proposed use. These witnesses vigorously protested that the appellant's proposed use of the ground floor would result in further aggravation of an already inadequate parking situation; and would result in a threat to the security of the premises due to the constant flow of non-residents through the building.

After the hearing the Board, by decision dated May 21, 1979, denied the application. The Board concluded that the use of the ground floor for professional type offices, and any use of the same general character, was within the provisions of the Township's Zoning Ordinance (Ordinance) which allow a

[ 59 Pa. Commw. Page 585]

    special exception; that to grant the special exception would be contrary to the public interest; that the appellant failed to provide for adequate buffering from noise, vibration, and any condition which is detrimental to the proper use of residential apartments; and that the appellant failed to comply with the off-street parking requirements of the Ordinance. Appellant filed a timely appeal in the court below, which affirmed the Board. Appellant brings this appeal from the lower court's Order.

Our scope of review where, as here, the lower court has taken no additional evidence, is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Bruni v. Zoning Hearing Board of Plymouth Township, 52 Pa. Commonwealth Ct. 526, 416 A.2d 111 (1980); B & B Shoe Products Co. v. Zoning Hearing Board of Manheim Borough, 28 Pa. Commonwealth Ct. 475, 368 A.2d 1332 (1977).

The lower court held that the findings of fact and conclusions of law of the Board were based on credible evidence and the applicable law. We find no error in this determination of the lower court; and we reject the plethora of argument presented by the appellant to the contrary.

The appellant in the case at bar chose to proceed under the Ordinance by applying for a special exception. An "exception" in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist. Application of Devereux Foundation Inc., Zoning Case, 351 Pa. 478, 41 A.2d 744 (1945). An exception has its origin in the ordinance itself; it relates only to such situations as are expressly provided for and enunciated by the terms of the ordinance. Kotzin v. Plymouth Township Zoning Board of Adjustment, 395 Pa. 125, 149

[ 59 Pa. Commw. Page 586]

A.2d 116 (1959). The function of the Board when an application for an exception is made is to determine that such specific facts, circumstances and conditions exist which comply with the standards of the ordinance and merit the granting of the exception. Id. at 127-28, 149 A.2d at 118.

Having elected to proceed by special exception, the appellant assumed the burden of establishing: (1) that its application falls within the provisions of the Ordinance which permit appellant so to proceed; and (2) that allowance of the special exception will not be contrary to the public interest.*fn1

The Board ruled that the appellant in the case at bar successfully brought itself within the provisions of the Ordinance which allow a special exception,*fn2 but that appellant failed to establish the correlative condition: that allowance of the special exception will

[ 59 Pa. Commw. Page 587]

    not be contrary to the public interest. In making this determination, the Board evaluated the evidence which was received at the hearing in light of the standards enumerated in the Ordinance;*fn3 the Board

[ 59 Pa. Commw. Page 588]

    concluded that the parking arrangements existing at Place One Apartments are insufficient to accommodate appellant's proposed commercial uses.

Our review of the record before us reveals that the Board's conclusions are consistent with the evidence. Place One Apartments is presently one hundred and seventy-one parking spaces short of what is required by Section 2404(f)(1) of the Ordinance;*fn4 it is thus an existing, non-conforming use as to parking. The exception which is sought would expand the

[ 59 Pa. Commw. Page 589]

    existing nonconformity with the specific parking requirements of the Ordinance, and thus constitutes a request to expand a lawful, non-conforming use. A lawful, non-conforming use may be expanded by a reasonable accessory use provided such expansion is not detrimental to the public health, safety and welfare. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A.2d 506 (1969); Seltzer v. Zoning Board of Adjustment, City of Pittsburgh, 39 Pa. Commonwealth Ct. 520, 395 A.2d 1041 (1979).

The appellant presented no plans for the additional parking spaces which its proposed commercial uses would necessitate. In light of this fact, we see no error in the Board's conclusion that such a situation is adverse to the public welfare. This Court has held that an application for a special exception under a zoning ordinance to expand a non-conforming use can properly be denied when evidence establishes that such expansion would create serious parking and traffic problems. Seltzer, supra; B & B. Shoe Products Co., supra.

Accordingly, we find no error of law or abuse of discretion on the record before us; and the Order of the court below is affirmed.*fn5

Order

And Now, the 9th day of June, 1981, the Order of the Court of Common Pleas of Montgomery County, at No. 79-11659, dated May 13, 1980, is affirmed.

Judge Wilkinson, Jr. did not participate in the decision in this case.

Disposition

Affirmed.


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