Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of George R. Kemp and Ann E. Kemp, his wife v. The White Oak Zoning Hearing Board, No. SA 16 of 1981.
Arnold V. Plum, with him William Richard Booth, Plum & Booth, for appellant.
James R. Mall, with him James Victor Voss, Meyer, Unkovic & Scott, for appellees.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
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The Allegheny County Common Pleas Court reversed a White Oak Zoning Hearing Board's (Board) denial of George and Ann Kemp's special exception application and the Board's conclusion that their requested use was not a permitted accessory use. The Borough of White Oak (Borough) appeals. The Kemps have moved to quash the appeal. We deny the Kemps' Motion to Quash and affirm the common pleas court.
The Kemps, owners of two single-family dwellings on adjoining tracts, applied for a special exception to the Borough's Zoning Ordinance. George Kemp conducts an engineering and architectural business in one of the dwellings and uses the other as his residence. The Board held that his office was not a permitted accessory use*fn1 under the Ordinance.*fn2 The court below
[ 70 Pa. Commw. Page 364]
reversed the Board, ruling that an engineering and architectural office is a professional office within the meaning of the Ordinance.
The Kemps argue that the standard recently set in Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commonwealth Ct. 296, 427 A.2d 776 (1981), precludes the Borough from appealing to this Court since they were not a party below to these proceedings. While it is true that in Gilbert we concluded that a municipality cannot be a party to an appeal when it was not a party below, the case is to be applied prospectively only.*fn3 Since this action precedes Gilbert,*fn4 the Kemps' motion is denied.*fn5
Now, to the merits: The central issue in this case is whether the Kemps' engineering and architectural office is a professional office within the meaning of the Ordinance. Our scope of review of the trial court in zoning cases where no new evidence is entertained is limited to a determination of whether the Board abused its discretion or committed a legal error. Appeal of Buckingham Developers Inc., 61 Pa. Commonwealth Ct. 408, 433 A.2d 931 (1981). The trial court concluded that the Board legally erred in excluding engineering and architectural offices from the definition
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of professional offices under the ...