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APPEAL J. HARRY HOFFMAN ET AL. J. HARRY HOFFMAN AND IRENE C. HOFFMAN (04/07/82)

decided: April 7, 1982.

IN RE: APPEAL OF J. HARRY HOFFMAN ET AL. J. HARRY HOFFMAN AND IRENE C. HOFFMAN, JOHN B. ERNST AND NANCY W. ERNST, AND RICHARD E. SMITH AND MADGE E. SMITH, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Bucks County in the case of In Re: Appeal of Richard C. Helms and Margaret N. Helms, J. Harry Hoffman and Irene C. Hoffman, John B. Ernst and Nancy W. Ernst and Richard E. Smith and Madge E. Smith; Borough Council of the Borough of Doylestown, both from the Decision of Doylestown Borough Zoning Hearing Board in Regard to the Application of Our Lady of Mt. Carmel Church, No. 79-10654-12-2.

COUNSEL

George M. Bush, with him John F. Hartzel, Hartzel and Bush, for appellants.

William E. Benner, Power, Bowen & Valimont, for appellee.

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

Author: Blatt

[ 66 Pa. Commw. Page 8]

Before us is a zoning appeal brought by property owners (appellants) whose land borders a vacant lot, owned by Our Lady of Mount Carmel Roman Catholic Church (Church).*fn1 The Church proposes to use the lot to provide additional off-street parking for parishioners attending Sunday morning masses.

[ 66 Pa. Commw. Page 9]

The Church complex is located in an R-2 residential zone, and consists of several lots which are either contiguous or separated from each other only by public streets: a parochial school with an attached auditorium and a parking lot which face East Ashland Street and are separated from the Church, rectory, parking lot and cemetery by East State Street, while all of the facilities are in turn separated by Maple Avenue from the convent and the open ground which is the subject of the present appeal.

The Church sought a decision from the Doylestown Borough Zoning Officer with regard to his position on issuing an off-street parking permit. It was informed by letter of May 24, 1979 that an application for such a permit would have to be denied because the zoning ordinance did not permit an off-street parking area in an R-2 zone. The Church appealed and the Doylestown Zoning Hearing Board (Board) conducted hearings after which it concluded that, inasmuch as the requested off-street parking would be located on the Church premises and would serve the Church's principal, i.e., religious use, it was, therefore, a permitted use under the zoning ordinance. Upon appeal filed by the present appellants*fn2 and by the Doylestown Borough Council, the Court of Common Pleas of Bucks County affirmed the Board.

Where, as here, the court below did not take additional evidence, our scope of review is limited to determining whether or not the Board abused its discretion or committed an error of law. McGeehan v. Zoning Hearing Board of Springfield Township, 45 Pa. Commonwealth Ct. 403, 407 A.2d 56 (1979).

[ 66 Pa. Commw. Page 10]

Both the Board and the court below determined that the Zoning Officer had incorrectly relied on Section 450(35) of the zoning ordinance in denying the permit, and then concluded that the proposed off-street parking was a permitted use under Section 801(g) of the ordinance.

Section 450 of the ordinance sets forth permitted uses and the regulations governing them, and subsection (35) thereof permits off-street parking for "cars of employees, customers or guests of existing establishments in the same district where the subject parking area is proposed." It further provides that such parking must conform to the provisions of Section 610, which regulates buffer yards in non-residential zones. A subsection (35) use is not permitted in an R-2 zone, but the Church here is a religious use under subsection (9) and so is a permitted use in an R-2 zone. The off-street parking which it now seeks to provide for ...


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