Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Franklin Trenge and Sylvia Trenge v. Zoning Board of Adjustment of South Whitehall Township, No. 84-C-1681.
Thomas J. Calnan, Calnan & Orloski, P.C., for appellants.
Maria C. Mullane, with her, Blake C. Marles, Weaver, Mosebach, Piosa, Hixson, Wallitsch & Marles, for appellee.
Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 95 Pa. Commw. Page 584]
Franklin Trenge and Sylvia Trenge appeal an order of the Court of Common Pleas of Lehigh County which affirmed the decision of the Zoning Hearing Board of South Whitehall Township denying the Trenges' request for a special exception to operate a home real estate office.
The Trenges reside in South Whitehall Township. Mr. Trenge is a licensed real estate broker trading
[ 95 Pa. Commw. Page 585]
under the name of Farmington Real Estate. Mrs. Trenge is a licensed real estate salesperson employed by Farmington Real Estate.
The Trenges filed an application with the Zoning Office of South Whitehall Township requesting that the proposed use of their home as a home real estate office be approved as a special exception under the zoning ordinance of South Whitehall Township, section 12.41(e), entitled Home Occupations and Home Professional Offices.
After a hearing under section 913 of the Municipalities Planning Code,*fn1 the zoning hearing board denied the request. The board concluded that the Trenges failed to sustain the burden of proving both that their proposed use was within the class eligible for special exception approval and that their proposed use would satisfy the standards and criteria set forth in the zoning ordinance.
In Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 526, 410 A.2d 909, 910-11 (1980), we stated:
As to special exceptions, our cases have repeatedly made clear that the applicant has both the persuasion burden and the initial evidence presentation duty to show that the proposal complies with the 'terms of the ordinance' which expressly govern such a grant. . . . This rule means that the applicant must bring the proposal within these specific requirements expressed in the ordinance for the use (or area, bulk, parking or other approval) sought as a special exception. Those specific requirements, standards or 'conditions' can be classified as follows:
[ 95 Pa. Commw. Page 5861]
. The kind of use (or area, bulk, parking or other approved -- i.e., the threshold definition of what is authorized as a special exception;
2. Specific requirements or standards applicable to the special exception -- e.g., special setbacks, size limits; and
3. Specific requirements applicable to such kind of use even when not a special exception. . . .
Every special exception will always involve item 1 above and must involve item 2 if it is not to involve an unconstitutional delegation of legislative power.
We first consider*fn2 whether the board erred in its determination that "the Appellant[s] failed to establish . . . that [they] would limit their activities on the residential premises to those activities typically and customarily associated with realtors. . . ."
With respect to ordinance authorization of a special exception for Home Professional Offices, section 12.41(e)(2) provides:
Home professional offices shall be limited to the office or studio of a physician, surgeon, dentist, artist, lawyer, engineer, architect, public accountant, chiropractor or realtor. (Emphasis added.)
The South Whitehall Township zoning ordinance does not define the term "realtor". Therefore, we turn to section 201 of the Real Estate Licensing and Registration
[ 95 Pa. Commw. Page 587]
Act*fn3 for guidance. That section defines a "broker" as:
Any person who, for another and for a fee, commission or other valuable consideration:
(1) Negotiates with or aids any person in locating or obtaining for purchase, lease or acquisition of interest in any real estate;
(2) Negotiates the listing, sale, purchase, exchange, lease, timeshare and similarly designated interests, financing ...