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JOSEPH BENE AND ADRIANA BENE v. ZONING HEARING BOARD WINDSOR TOWNSHIP (12/01/88)

decided: December 1, 1988.

JOSEPH BENE AND ADRIANA BENE, APPELLANTS
v.
ZONING HEARING BOARD OF WINDSOR TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County, in the case of Joseph Bene and Adriana Bene v. Zoning Hearing Board of Windsor Township, No. 86-SU-04472-08, dated February 5, 1988 and docketed February 8, 1988.

COUNSEL

Victor A. Neubaum, Malone & Neubaum, for appellants.

Byron H. LeCates, Smith & LeCates, for appellee.

David Schaumann, Blakey, Yost, Bupp & Schaumann, for intervening appellee, Shipley-Humble, Inc.

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

Author: Palladino

[ 121 Pa. Commw. Page 381]

Joseph Bene and Adriana Bene (Appellants) appeal an order of the Court of Common Pleas of York County (trial court) denying their appeal from a decision of the Zoning Hearing Board of Windsor Township (ZHB) which granted the application of Shipley-Humble, Inc. (Applicant) for a building permit. We affirm.

[ 121 Pa. Commw. Page 382]

Applicant operated a gas station in Windsor Township in a commercially zoned district. On February 21, 1986, Applicant applied to the ZHB for a variance from the setback requirements of the zoning ordinance because Applicant planned to construct an automatic car wash on its property. After a hearing, by decision dated March 26, 1986, the ZHB denied the variance. However, during the course of the hearing, two members of the ZHB referred to the proposed car wash as an "accessory use" to the gas station. Appellants were present at the hearing, but did not appeal the decision of the ZHB.

After Applicant submitted a modified application with different setbacks, the zoning officer issued a building permit to Applicant on April 17, 1986. On May 19, 1986, Appellants appealed the issuance of the building permit to the ZHB. At approximately the same time, Applicant applied for a hearing before the ZHB for (1) an interpretation of the zoning ordinance which would allow the car wash as an accessory use or, in the alternative, (2) a special exception for the car wash, and (3) a variance from the setback requirements.

The ZHB held several more hearings and, on July 23, 1986, again denied the variance. However, the ZHB split its vote on the issue of the car wash as an accessory use.*fn1 Appellants did not appeal the July 23, 1986 decision of the ZHB to the trial court. On September 3, 1986, Applicant submitted yet another building permit

[ 121 Pa. Commw. Page 383]

    application to the zoning officer, who referred the matter to the ZHB. After still more hearings, by decision dated October 20, 1986, the ZHB voted 2-0 in favor of Applicant, concluding that the car wash was an accessory use and, hence, a permitted use under the zoning ordinance. The ZHB directed the zoning officer to issue the permit if he found that all other ordinance requirements were met. On November 28, 1986, the zoning officer issued the permit.

On November 18, 1986, Appellants filed an appeal with the trial court of the ZHB's October 20, 1986 decision. By order dated September 25, 1987, the trial court granted Appellants' motion to vacate the ZHB's decision and remanded the matter to the ZHB for testimony on whether the car wash was an accessory use to this particular gas station. After taking additional testimony, the ZHB determined that the car wash was an accessory use and, therefore, a permitted use ...


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