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10/09/97 BRUCE W. PATULLO v. ZONING HEARING BOARD

October 9, 1997

BRUCE W. PATULLO, APPELLANT
v.
ZONING HEARING BOARD OF THE TOWNSHIP OF MIDDLETOWN



Appealed From No. 96-5324. Common Pleas Court of the County of Delaware. Judge ZETUSKY, JR.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi

OPINION BY

SENIOR JUDGE MIRARCHI

FILED: October 9, 1997

Bruce W. Patullo (Patullo) appeals from an order of the Court of Common Pleas of Delaware County which affirmed the decision of the Zoning Hearing Board of Middletown Township (Board) denying his application for a special exception and a variance.

Patullo is the owner of the subject property located at 602 Chester Creek Road, Middletown Township (Township), Delaware County, along the eastern bank of the Chester Creek. The property consists of 3.18 acres improved with a detached, one and one-half story, single-family dwelling, two detached sheds and a concrete shed pad.

The property is located within the R-1 Residential zoning district, where detached single-family dwellings and related accessory uses are permitted. The entire property is also within the F-2 One Hundred Year Floodplain District, a subdistrict of the Flood Plain Conservation District of the Township, where a residential use is not permitted under Section 2606 of the Middletown Township Zoning Ordinance (Ordinance). The current residential use of Patullo's property is permitted as a nonconforming use because the house was built in 1953 prior to the enactment of the Ordinance regulating the uses in the F-2 district.

In February 1996, Patullo filed an application for a special exception and a variance with the Board following the Township zoning officer's denial of his application for a building permit for construction of a garage on his property. Patullo proposed to construct a 40-foot by 40-foot, 18-foot high, one and one-half story barn-style garage, a bituminous driveway and a related parking area. The plan submitted to the Board showed that the footprint of the proposed structure is approximately equal to the footprint of the existing house and flagstone patio. Patullo also proposed to deposit fill material in the area of the proposed building to meet the requirement of Section 2607.1.C.b.(2) of the Ordinance that the ground level be elevated to a height of 1.5 feet above the 57-foot limit of the one hundred year flood level.

Patullo currently owns seven classic or antique automobiles for his personal use and intends to use the proposed garage to store up to eleven automobiles and as a work area. Patullo stated that mechanical repairs of the automobiles, not involving any body work or painting, would be done in the proposed garage, and that no flammables would be stored in the garage, except gasoline, motor oil and lubricants contained in the automobiles.

The Board found that the proposed garage does not constitute an accessory building or use incidental to and customarily conducted in connection with a residential use permitted in the R-1 zoning district. The Board further found that the proposed deposit of the fill material would increase the property's flood elevation level by 0.1 foot and result in a horizontal increase of the one hundred year flood plain along Knowlton Road by one foot. Finally, the Board found that the proposal failed to comply with the regulations prohibiting the storage of flammable or toxic material and petroleum products and the deposit of fill material in the F-2 district.

The Board concluded that the proposed building would have an adverse effect on the health, safety and general welfare of the surrounding area, and that Patullo failed to establish his entitlement to a special exception and a variance. The Board accordingly denied the application. On appeal, the trial court affirmed the Board's decision. *fn1

Patullo first contends that the proposed garage constitutes "a private garage" or "a private recreational facility," which is specifically permitted as an accessory use in the R-1 zoning district under Section 501.B of the Ordinance. *fn2 Patullo argues that because the Ordinance does not limit the number of vehicles permitted in an accessory private garage, the size of the proposed garage is irrelevant in determining whether the proposed use is permitted as an accessory use in the R-1 zoning district. Patullo also challenges the Board's Conclusion that the proposed garage does not constitute an accessory private garage because it is not customary for a residential property owner to have a hobby of owning and collecting classic automobiles.

In so contending, however, Patullo disregards the undisputed fact that his property is located not only within the R-1 zoning district, but also within the F-2 district. Section 2606.A.3 permits in the F-2 zoning district "accessory uses, which do not involve structures, customarily incidental to the permitted use." (Emphasis added.) Patullo acknowledges that a residential use is not permitted in the F-2 zoning district and that his current use of the property therefore exists as a nonconforming use. Thus, even assuming that the proposed garage is permitted in the R-1 zoning district as an accessory use customarily incidental to the residential use, to expand ...


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