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APPEAL ALEXANDER M. HAFF (08/03/82)

decided: August 3, 1982.

IN RE: APPEAL OF ALEXANDER M. HAFF, JR. FROM DOYLESTOWN BOROUGH ZONING HEARING BOARD. ALEXANDER M. HAFF, JR., APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Alexander M. Haff, Jr., from the Doylestown Borough Zoning Hearing Board, No. 75-7299-04-5.

COUNSEL

Marvin L. Wilenzik, for appellant.

Robert L. Lansberry, Lansberry and Lansberry, for appellee-intervenor, Doylestown Borough.

President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 68 Pa. Commw. Page 113]

Alexander M. Haff, Jr. (Appellant) has appealed from an order of the Court of Common Pleas of Bucks County which affirmed the decision of the Doylestown Borough Zoning Hearing Board (Board) to deny the Appellant's application for a building permit. We affirm.

Appellant is the owner of a tract of land located in an O-Office zoning district within the Borough of Doylestown. Appellant filed an application for a building permit on May 30, 1975 to allow the construction of a McDonald's fast food restaurant on his property. The application was denied by the zoning officer on the ground that a McDonald's restaurant did not constitute a use which is permitted in the Office District. Appellant appealed this denial to the board which, after a hearing, affirmed. Upon further appeal the court of common pleas also affirmed the denial of the building permit.

Two issues have been raised in the appeal now before this Court: 1) whether the Doylestown Borough zoning ordinance permits a McDonald's restaurant as a use in an Office District and 2) if such a use is not permitted, is the ordinance unconstitutional?

Where, as here, the court of common pleas has taken no additional testimony, our scope of review is to determine whether the Board committed an abuse

[ 68 Pa. Commw. Page 114]

    of discretion or an error of law in reaching its decision. Abington Township v. Dunkin Donuts Franchising Corp., 5 Pa. Commonwealth Ct. 399, 291 A.2d 322 (1972).

Two use definitions are pertinent to this appeal. "Use 30" is permitted in the Office District and is defined as an "Eating place for the sale and consumption of food and beverages without drive-in or take-out service (service at table or sit-down counter facilities only)." "Use 31" which is not permitted in the Office District is defined as an: "Eating place for the sale and consumption of food and beverages with drive-in or take-out service." The zoning officer, Board and court of common pleas all concluded that the proposed McDonald's restaurant falls within the definition of Use 31 and, therefore, is not a use permitted in the Office District. Appellant contends, however, that his proposed use is one within the definition of "Use 30" and, thus, is permitted as zoned.

The first issue presented, then, requires an interpretation of the pertinent ordinance provisions. In interpreting zoning ordinance provisions, restrictive language must be strictly construed so as to allow the landowner the least restrictive use of his property. Lake Adventure, Inc. v. Zoning Hearing ...


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