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RICHARD G. HOGENTOGLER ET AL. v. WINDSOR TOWNSHIP ZONING HEARING BOARD ET AL. (03/26/82)

decided: March 26, 1982.

RICHARD G. HOGENTOGLER ET AL., APPELLANTS
v.
WINDSOR TOWNSHIP ZONING HEARING BOARD ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of York County in case of Richard G. Hogentogler and Emma F. Hogentogler, his wife, Earl N. Dillman and Charles F. Siford, Jr. and Verna Siford, his wife v. Windsor Township Zoning Hearing Board v. Albert J. Howard, Intervenor, No. 80-S-3800.

COUNSEL

Harry C. Elsesser, Jr., for appellants.

John M. Boddington, Budding, Boddington & Kehm, for appellee and intervenor.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 65 Pa. Commw. Page 452]

Appellants*fn1 appeal from an order of the Court of Common Pleas of York County which dismissed their appeal from a decision of the Windsor Township Zoning Hearing Board (Board) which granted a special exception application filed by Albert J. Howard (Intervenor).

The record in this case discloses that Intervenor applied for a special exception on September 2, 1980 to allow him to convert a quonset-type barn and a shed into eight townhouses. The barn and shed are located on a 10 acre portion of a 50 acre tract of land owned

[ 65 Pa. Commw. Page 453]

    by Intervenor.*fn2 The tract is located in an R-1 district which allows "residential conversion units" by special exception. Following a hearing held on September 24, 1980, the Board granted Intervenor's application. Appellants, who participated in the hearing before the Board, appealed to the court of common pleas, which, without taking additional evidence, dismissed the appeal.

Appellants raise two issues in their appeal to this Court: 1) whether the Board committed an abuse of discretion or an error of law when it granted Intervenor's application for a special exception, and 2) whether the court of common pleas erred in refusing to take additional evidence.

Where, as here, the court below has taken no additional evidence, our scope of review is limited to a determination of whether the Board committed an abuse of discretion or an error of law. Brunner v. Upper Makefield Township Zoning Hearing Board, 12 Pa. Commonwealth Ct. 109, 315 A.2d 359 (1974).

With respect to the first issue before us, Appellants specifically argue that Intervenor did not establish that his proposal met the Windsor Township zoning ordinance's definition of "residential conversion unit." It is, of course, true that Intervenor had the burden of persuasion and the duty of presenting evidence that his proposal complied with the terms of the ordinance which governed the grant of ...


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