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MARK HANKIN v. UPPER MORELAND TOWNSHIP AND ZONING HEARING BOARD UPPER MORELAND TOWNSHIP (01/15/86)

decided: January 15, 1986.

MARK HANKIN, APPELLANT
v.
UPPER MORELAND TOWNSHIP AND ZONING HEARING BOARD OF UPPER MORELAND TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Mark Hankin v. Upper Moreland Township and Zoning Hearing Board of Upper Moreland Township, No. 84-00266.

COUNSEL

Jonathan Samel, Hunn, Shelly & Samel, for appellant.

George B. Ditter, Jenkins, Tarquini & Jenkins, for appellees.

Judges Rogers and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 94 Pa. Commw. Page 211]

This is an appeal by Mark Hankin who seeks review of an order of the Court of Common Pleas of Montgomery County which had affirmed a decision of the Upper Moreland Township Zoning Hearing Board (Board). That Board decision had determined that a gymnastics and dance school is not a permitted use in an I-Limited Industrial District. We affirm.

The following facts are pertinent. Hankin owns thirty-two acres of land in Upper Moreland Township, Montgomery County, upon which is located a self-contained business park. The property is zoned I-Limited Industrial under the Upper Moreland Township Zoning Ordinance (Ordinance). Hankin had leased a portion of one of the buildings on that property

[ 94 Pa. Commw. Page 212]

    to Richochet's Gymnastics Club, Inc. (Richochet's) which operates a private dance and gymnastics school. On August 30, 1983, the Township Zoning Officer informed Hankin that the school could not operate on the property since it was not a permitted use in a Limited Industrial District. He appealed the Zoning Officer's decision to the Board contending that the school came under the "office use" provision of Section 14.01 of the Ordinance.*fn1 The Board determined that while a dance and gymnastics school was a permitted use in an O-Office or C-Commercial District, it was not a permitted use in an I-Limited Industrial District. Hankin then appealed that decision to common pleas court which affirmed the Board. Hankin v. Upper Moreland Township, 115 Montg. 155 (Pa. C.P. 1984). This appeal followed.

The sole issue presented for our determination in this appeal is whether the Ordinance's listing of permitted uses in an O-Office District contained in Section 13.02 of the Ordinance*fn2 constitutes a definition of

[ 94 Pa. Commw. Page 213]

"office" which applies throughout the Ordinance. As recognized by both parties, this is solely an issue of statutory construction.*fn3

Pursuant to Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b), we must first ascertain whether the words of the Ordinance are clear and free from all ambiguity. If so, we may not disregard the letter of the Ordinance under the pretext of pursuing its spirit. Pennsylvania Labor Relations Board v. Teamsters Union Local No. 77, 20 Pa. Commonwealth Ct. 410, 342 A.2d 158 (1975). The rules of statutory construction contained in the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1939, are applicable to ordinances enacted by municipalities as well as to acts of the General Assembly. Diehl v. City of McKeesport, 60 Pa. Commonwealth Ct. 561, 432 A.2d 288 (1981). Here, Section 14.01(6) specifies "offices and office record storage" as one of the permitted uses in a Limited Industrial District. The Ordinance does not define further the term "office" in Article 14 dealing with Limited Industrial Districts. The Ordinance does contain a ...


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