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B.A.C. v. ZONING HEARING BOARD MILLCREEK TOWNSHIP ET AL. TOWNSHIP MILLCREEK (05/15/85)

decided: May 15, 1985.

B.A.C., INC.
v.
THE ZONING HEARING BOARD OF MILLCREEK TOWNSHIP ET AL. THE TOWNSHIP OF MILLCREEK, APPELLANT. B.A.C., INC. V. THE ZONING HEARING BOARD OF MILLCREEK TOWNSHIP ET AL. ST. JUDE'S CHURCH, APPELLANT



Appeals from the Order of the Court of Common Pleas of Erie County in the case of B.A.C., Inc. v. The Zoning Hearing Board of Millcreek Township, The Township of MillCreek, St. Jude's Church, Gary Nichols, Sara Nichols, Michael Shaw, Chris Shaw, Thomas Covey and Rae Covey, No. 1161-A-1983.

COUNSEL

Richard W. Perhacs, Elderkin, Martin, Kelly, Messina & Zamboldi, with him, Vedder J. White, McClure, Dart, Miller, Kelleher & White, for appellants.

James D. McDonald, Jr., with him, George Joseph, Quinn, Gent, Buseck and Leemhuis, Inc., and Lindley R. McClelland, with him, Joseph M. Walsh, Jr., McClelland, Brabender and Walsh, for appellees.

Robert A. Mills, McNees, Wallace & Nurick, for Amicus Curiae, Pennsylvania Manufactured Housing Association.

Judges Craig and Doyle and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 89 Pa. Commw. Page 287]

In this zoning appeal, we have a question of first impression: Where a zoning ordinance does not list a requested use among the specific use types allowable as special exceptions, may the trial court nevertheless grant special exception approval on the basis that the request complies with the ordinance's general standards governing all special exceptions?

In addition to that key issue, we must review a number of other conclusions whereby the trial court deemed the requested use to be allowable as a permitted use, as a special exception on other theories, and also by way of variance.

We must determine whether the Court of Common Pleas of Erie County, having received additional testimony, abused its discretion or committed an error of law*fn1 in reversing a decision of the Millcreek Township Zoning Hearing Board which had refused to grant either a special exception or variance with respect to the request of B.A.C., Inc. (BAC) to construct a sixty-unit mobilehome park on land acquired after rezoning had caused BAC's nearby existing mobilehome park to become a nonconforming use.

The basic facts are undisputed. Since 1971, BAC has operated the existing mobilehome park on land north of West Sixth Street and west of Scott Run

[ 89 Pa. Commw. Page 288]

    creek. After the township had classified all of the land involved in this case as B-Business District -- which explicitly permits a wide range of thirty-seven categories of commercial uses*fn2 not including mobilehome parks -- BAC in October, 1982 acquired approximately eleven acres of land east of that creek and also north of West Sixth Street, with more than 200 feet of frontage on that street.

After the township zoning officer had rejected BAC's application for a permit to build a sixty-unit mobilehome park on the newly-acquired land east of the creek at an estimated cost of $420,000, BAC appealed to the zoning hearing board to seek a decision

[ 89 Pa. Commw. Page 289]

    allowing an alleged "expansion of the nonconforming use," by way of special exception, variance or otherwise.

The board refused the approval, determining that neither the length of frontage on West Sixth Street nor other factors constituted a hardship sufficient for a variance, that the ordinance authorized no special exception for a mobilehome park, and that more than a mere expansion of the nonconforming use was involved because the increase amounted to 100% in terms of number of units and more than 100% in terms of area.

The record reveals that, at about the time of the board's decision, the township rezoned BAC's property to Resort/Business District, which explicitly allows a wide range of twenty-three categories of commercial and institutional uses,*fn3 also not including mobilehome parks. The ordinance permits mobilehome parks in the C-Residence Districts only.

[ 89 Pa. Commw. Page 290]

BAC's appeal to the common pleas court, like its appeal to the board, apparently recognized that its proposal did not constitute a permitted use either in B-Business District, the classification in effect at the time of its application, or in the Resort/Business District; the notice of appeal sought the grant of a special exception or a nonconforming use expansion approval.

The trial judge concluded in his adjudication that the proposed expansion met all of the general criteria established by section 1008 of the zoning ordinance for the granting of special exceptions. He rejected the township's contention that a special exception was nevertheless unavailable because the ordinance does not list a mobilehome park as one of the specific uses allowable by way of special exception. In addition, without any finding of hardship, he held that a variance was allowable upon a nonconforming use expansion basis and also upon the basis that the proposed expansion constituted a de minimis deviation from the travel trailer park use allowed under the Resort/Business District classification.

Permitted Use Interpretations

In the adjudication, the trial judge additionally concluded that the proposed mobilehome park also constituted a permitted use under both the Resort/Business

[ 89 Pa. Commw. Page 291]

District provision, which allowed travel trailer parks, and the Mixed Occupancy District classification, which allows "motor courts." Although the trial court's order was confined to granting the special exception and the variance (which would be unnecessary if the proposal were indeed a permitted use), a brief discussion of these permitted use conclusions is necessary to arrive at ...


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