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

COMMONWEALTH COURT OF PENNSYLVANIA


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 general definition provision which is encompassed in Section 1.03. That section provides that unless otherwise expressly stated, the terms listed in Section 1.03 have the meanings set forth in that section. The term "office" is not specifically

[ 94 Pa. Commw. Page 214]

    defined by Section 1.03. Hankin, however, argues that the Ordinance does indeed provide a specific definition of "office" and calls our attention to Section 13.02. He contends that the listing of permitted uses in an O-Office District constitutes a definition of "office" which is applicable throughout the Ordinance. We disagree. Section 13.02 purports to define nothing. It merely lists those uses which are permitted by the Ordinance in an Office District. Its applicability is limited to Article 13 of the Ordinance pertaining to Office Districts. The inclusion of a particular land use in Section 13.02, an "office" does not provide a definition for purposes of Article 14 of the Ordinance dealing with Limited Industrial Districts. We agree with the common pleas court that what is permitted as an "office" is not patently obvious from the language of Section 14.01 or in the general definition provisions of Section 1.03. Therefore, we must turn to the rules of statutory construction to discern what facilities are permitted under the term "office" in a Limited Industrial District.

Where the statute or ordinance does not specifically define the term sought to be construed, and the words are ones in common usage, they are to be given their common usage meaning. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1903(a); Mt. Laurel Racing Ass'n v. Zoning Hearing Board, Municipality of Monroeville, 73 Pa. Commonwealth Ct. 531, 458 A.2d 1043 (1983). The common usage meaning and the dictionary definition of "office" do not include a dance or gymnastics school. The dictionary definition of "office," as it pertains here, is as follows:

[ 94 Pa. Commw. Page 215]

    are performed b : the directing headquarters of an enterprise or organization c : the place in which a professional man (as a physician or lawyer) conducts his professional business. . . .

Webster's New Collegiate Dictionary 790 (1981). That definition does not encompass a dance and gymnastics school such as Richochet's. Accord Westgate Professional Center, Inc. v. Hearing Board of Hanover Township, 60 Pa. D. & C. 2d 653, 656 (C.P. Northampton 1972) (health spa not included in the common usage meaning of the term "office"). Accordingly, the Board did not err or abuse its discretion when it held that a dance and gymnastics school is not a permitted use in an I-Limited Industrial District.

Having found no errors of law nor abuses of discretion on the part of the Board, we shall affirm the order of the common pleas court.

Order

Now, January 15, 1986, the Order of the Court of Common Pleas of Montgomery County at Docket No. 84-00266, dated September 18, 1984, is hereby affirmed.

Disposition

Affirmed.


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