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THOMAS C. FRANCHI v. ZONING HEARING BOARD BOROUGH NEW BRIGHTON AND WILLIAM J. FIDEN AND SUSAN L. FIDEN. WILLIAM J. FIDEN AND SUSAN L. FIDEN (06/23/88)

decided: June 23, 1988.

THOMAS C. FRANCHI
v.
ZONING HEARING BOARD OF THE BOROUGH OF NEW BRIGHTON AND WILLIAM J. FIDEN AND SUSAN L. FIDEN. WILLIAM J. FIDEN AND SUSAN L. FIDEN, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Beaver County in the case of Thomas C. Franchi v. Zoning Hearing Board of the Borough of New Brighton and William J. Fiden and Susan L. Fiden, No. 645 of 1986.

COUNSEL

J. Philip Colavincenzo, for appellants.

John A. Clay, for appellee.

Judges Craig and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 117 Pa. Commw. Page 237]

This is an appeal by William J. Fiden and Susan L. Fiden (Appellants) from a decision of the Court of Common Pleas of Beaver County which sustained the appeal of Thomas C. Franchi (Franchi) from a decision of the Zoning Hearing Board of the Borough of New Brighton (Board). We reverse.

Appellants are the owners of property which adjoins certain property owned by Franchi at 1715 Third Avenue, New Brighton. On January 17, 1986, Appellants filed an application for interpretation of Article III, Section 301(9) of the New Brighton Zoning Ordinance No. 935 (Ordinance) with the Board seeking a determination as to whether Franchi's use of his property at 1715 Third Avenue was in compliance with the Ordinance. The application alleged that Franchi was in violation of the Ordinance because the subject property was situated in an R-1 residential district which permits a residence together with an accessory use such as a professional office; but that Franchi did not reside at 1715 Third Avenue.

The record reveals that 1715 Third Avenue is a duplex-type building located in an R-1 residential district. Franchi utilizes portions of the first and second floor of the left side of the building for his business. On the first floor, Franchi maintains his office, a larger room for a secretarial pool, a third room where a copy machine and filing cabinets are located, and a half bath for the convenience of clients. A computer-storage room utilized for business purposes is located on the second floor. Also on the second floor, Franchi maintains a one room efficiency apartment. This efficiency apartment

[ 117 Pa. Commw. Page 238]

    contains a sofa bed, a small refrigerator, a dresser, a toaster oven, a television set, and several closets. There is also a full bath and another storage room where Franchi keeps a large table and stereo and various boxes packed with personal items. Other than the small refrigerator and toaster oven, there are no kitchen facilities. The right side of the building is leased to a tenant as living quarters.

Franchi's testimony disclosed that when he first purchased the subject property he resided with his ex-wife and had no intention of living at the Third Avenue property. However, in October 1984, he separated from his ex-wife and thereafter moved to the Third Avenue residence. According to Franchi, he spends approximately fifteen nights per month at his Third Avenue apartment and on the other nights he is either out of town on business or he sleeps elsewhere.

The Board, noting that an accessory use is one that is customarily incidental and subordinate to a principal use, concluded that Franchi's principal usage of 1715 Third Avenue was an accounting office; and therefore, Franchi was in violation of the Ordinance. The trial court, after a de novo hearing, overruled the Board's decision opining that regardless of the fact that Franchi's residence required substantially less space than his office, he did reside at 1715 Third Avenue and his use of the subject property as an office was customarily incidental to his use of the property as a residence. This appeal followed.

The pivotal issue presented for our resolution on appeal is whether the trial court erred in concluding that Franchi's accounting business was an accessory use under the Ordinance. Appellants maintain that the trial court erred in its decision because it only considered whether Franchi's use of the ...


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