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DOYLE G. DODSON v. ZONING HEARING BOARD TOWN BLOOMSBURG. RICHARD MAUST (10/13/88)

decided: October 13, 1988.

DOYLE G. DODSON, ET AL.
v.
ZONING HEARING BOARD OF THE TOWN OF BLOOMSBURG. RICHARD MAUST, APPELLANT



Appeal from the Order of the Court of Common Pleas of Columbia County in the case of Doyle G. Dodson, John W. Morrison, Carol Lee Thomas, Charles J. Hoppel, Tobias F. Scarpino, Franklin Pantalone and Russel E. Houk v. Zoning Hearing Board of the Town of Bloomsburg, No. 636 -- 1986.

COUNSEL

William S. Kreisher, Kreisher & Gregorowicz, for appellant.

Alvin J. Luschas, Derr, Pursel & Luschas, for appellees.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig. Judge MacPhail did not participate in the decision in this case.

Author: Craig

[ 120 Pa. Commw. Page 399]

This zoning appeal by developer Richard Maust from an order of the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia County Branch, reversing a zoning hearing board's approval of the developer's condominium project, presents a single interpretation question with respect to the zoning ordinance of the Town of Bloomsburg:

Where a parking setback requirement, found under the heading of 'Group Dwellings,' applies to group dwellings, but with an express exception for two-family and townhouse dwellings, is that exemption available to townhouses and two-family dwellings which make up a group dwelling development?

The trial court, noting that the development had been approved under the heading of "Group Dwelling," concluded that the "Group Dwelling" and "townhouse" concepts were mutually exclusive, so that the exemption

[ 120 Pa. Commw. Page 400]

    could not apply to townhouses and two-family dwellings proposed as constituent parts of a group dwelling development. Because the ordinance clearly contemplates the existence of townhouses and two-family dwellings within a group dwelling development, and expressly exempts such townhouses and two-family dwellings from the parking setback requirement, the decision must be reversed.

There is no factual dispute. The Bloomsburg R-U Residential-Urban District classification allows single-family, two-family and multiple-family dwellings as permitted uses, according to section 72 of the Zoning Ordinance. In that district, § 73(3) contains a special exception provision allowing "group dwellings, in accordance with . . . § 211(5)."

The developer's application to the town, in proceedings before the Bloomsburg Zoning Hearing Board, finally evolved as a group dwelling special exception application, to erect nineteen dwelling units on one lot in single ownership consisting of two side-by-side two-family dwellings and three side-by-side partywall buildings, with three or four units in each. (208a) The board approved the proposal as a group dwelling special exception, granting certain variances and the parking setback exemption.

Objectors appealed to the common pleas court. Upon reconsideration after a remand to the zoning hearing board for additional findings, the trial judge concluded that the group dwelling special exception grant was lawful, and he also approved all other matters except the board's decision that the project would not have to comply with a parking setback requirement, under group dwellings, that parking spaces be kept at least twenty feet away from any building. The trial judge declared the board's reasoning to be convoluted because of his conclusion that the board erred in treating the development

[ 120 Pa. Commw. Page 401]

    as consisting of a "group dwelling" and "townhouses" at one and the same time.

Thus, the sole question remaining, as noted above, is whether a development approved as a group dwelling, by way of special exception approval, can be viewed as containing, within it, townhouses and two-family ...


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