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ZONING HEARING BOARD MAHONING TOWNSHIP v. WALTER J. ZLOMSOWITCH AND CAROL K. ZLOMSOWITCH (01/17/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 17, 1985.

THE ZONING HEARING BOARD OF MAHONING TOWNSHIP, APPELLANT
v.
WALTER J. ZLOMSOWITCH AND CAROL K. ZLOMSOWITCH, APPELLEES

Appeal from the Order of the Court of Common Pleas of Carbon County in the case of Walter J. Zlomsowitch and Carol K. Zlomsowitch v. The Zoning Hearing Board of Mahoning Township, No. 81 S 484.

COUNSEL

Thomas S. Nanovic, with him, Roger N. Nanovic, Thomas S. McCready and George T. Dydynsky, for appellant.

Daniel F. Zeigler, Garfield & Zeigler, for appellees.

Judges Williams, Jr., MacPhail and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 87 Pa. Commw. Page 124]

The Zoning Hearing Board of Mahoning Township (ZHB) and the Mahoning Township Board of Supervisors (Supervisors) appeal the orders of the Court of Common Pleas of Carbon County.*fn1 We affirm.*fn2

On February 3, 1981, Walter J. Zlomsowitch and Carol K. Zlomsowitch (Appellees) applied for a permit to build a stable on their property in Mahoning Township. The permit was issued that same day, but on April 15, 1981, the Supervisors notified Appellees that their permit had been issued in error and was to be revoked. The permit was revoked on June 2, 1981.

Appellees appealed to the ZHB and filed a request for a variance. A public hearing was held on August 4, 1981, at which time testimony was taken on both the appeal and the variance. By decision

[ 87 Pa. Commw. Page 125]

    dated September 29, 1981, the ZHB affirmed the revocation of Appellee's building permit.*fn3

Appellee appealed the ZHB decision to the Court of Common Pleas of Carbon County which sustained the appeal.*fn4 After the ZHB petitioned for reconsideration, the court filed a supplemental opinion on October 14, 1983, denying the petition. The instant appeal followed.

Our scope of review in a zoning case where, as here, the court below did not receive additional evidence is to determine whether the ZHB abused its discretion, committed an error of law, or made findings of fact which were not supported by substantial evidence. Ramsey v. Zoning Hearing Board of the Borough of Dormont, 77 Pa. Commonwealth Ct. 456, 466 A.2d 267 (1983).

The lot in question is located in an R-2 low density residential zone and is therefore governed by Article VII of the Mahoning Township Ordinance (Ordinance). Section 602 permits:

Agricultural and horticultural uses as defined in Article V provided that all area, density and lot width regulations are also in conformance with Article V.

Article V defines an agricultural use as one that is "related to the tilling of land, the raising of farm products, the raising and keeping of horses, cattle and other livestock, and the raising of poultry and poultry products." Section 502(a) of the Ordinance (emphasis added). The area, density and lot width regulations of Article V, Section 505, provide in full that:

[ 87 Pa. Commw. Page 126]

    a. Buildings devoted to farm use shall be exempt from area regulations.

     b. The lot areas, densities, and lot widths for single-family detached dwellings, including individual mobile homes and seasonal residences, shall not be less than the following:

Forty thousand (40,000) square feet, exclusive of rights-of-way.

     i. Maximum net density -- .92 dwelling units per acre.

     ii. Minimum lot width at the setback line -- two hundred (200) feet, minimum width at the right-of-way line one hundred fifty (150) feet.

     iii. Minimum lot depth -- two hundred (200) feet.

Because the proposed structure, a stable,*fn5 is not a single family dwelling of any kind, it was entirely appropriate for the court below to determine that Section 505(a) applied to the instant case. The ordinance does not define the term "farm use" as used in Section 505(a); it must therefore be construed according to its plain, usually understood meaning. Farmland Industries, Inc. v. Zoning Hearing Board of Pequea Township, 65 Pa. Commonwealth Ct. 288, 442 A.2d 395 (1982). The term "agricultural use" is synonomous with farm use as that term is used in Section 505(a). A stable is a familiar structure used for farm and agricultural purposes. Accordingly, the stable contemplated by Appellees is exempt from area regulations,*fn6 and the ZHB erred in not so finding.

[ 87 Pa. Commw. Page 127]

We are cognizant of the fact that the ordinance defines both farm*fn7 and use.*fn8 The ZHB would have us read the two definitions together to arrive at a definition for "farm use" as used in Section 505. Had the township intended that construction, it could have provided so in the ordinance. It is not within our province to act for the legislative body. Accordingly, we affirm.

Order

The orders of the Court of Common Pleas of Carbon County, Pennsylvania, No. 81-S-484, dated September 16, 1983 and October 7, 1983 are affirmed.

Disposition

Affirmed.


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