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Orange Stones Co. v. Borough of Hamburg

August 31, 2011

ORANGE STONES CO.
v.
BOROUGH OF HAMBURG, ZONING HEARING BOARD AND BOROUGH OF HAMBURG, BERKS COUNTY, PENNSYLVANIA BOROUGH OF HAMBURG
v.
BOROUGH OF HAMBURG, ZONING HEARING BOARD AND ORANGE STONES CO. APPEAL OF: BOROUGH OF HAMBURG



The opinion of the court was delivered by: Judge Brobson

Submitted: February 18, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON

The Borough of Hamburg (Borough) appeals from an order of the Court of Common Pleas of Berks County (trial court), dated June 28, 2010, which granted the appeal of Orange Stones Co. (Orange Stones) and denied the appeal of the Borough from a decision of the Borough of Hamburg Zoning Hearing Board (Board). In so holding, the trial court affirmed in part and reversed in part the Board‟s decision, which granted Orange Stones‟ application for a zoning permit subject to certain conditions. For the reasons that follow, we affirm.*fn1

Orange Stones is the owner of real property (Property) located at 215 Pine Street, in the Borough of Hamburg, Berks County. The Property is located in a VC Borough and Village Center Zoning District, as defined by the Borough Zoning Ordinance. (Reproduced Record (R.R.) at 175a.) On April 22, 2009, Orange Stones submitted an application for a zoning permit to the Borough, describing the proposed use for the Property as a "20-guest room "motel/hotel.‟"*fn2

(R.R. at 89a-91a.)

On May 26, 2009, the Borough‟s zoning officer issued a letter denying Orange Stones‟ zoning permit application. The zoning officer determined, inter alia, that, pursuant to Borough Ordinance Number 765-09 (Ordinance 765-09), Orange Stones was "required to make a submission for land development to the [Borough] planning Commission [sic] and obtain approval from the Borough Council as a condition to issuance of a zoning permit." (R.R. at 92a.) Ordinance 765-09 provides, in pertinent part:

A. Any person or entity ("Applicant") desiring to undertake any new construction, structural or site alteration, or changes in the use of a building or lot within the [Borough] shall first apply to the Borough Zoning Officer for a zoning permit by filling out the appropriate application form and by submitting all requested information along with the required fee in accordance with the Pennsylvania Municipalities Planning Code and the [Borough] Zoning Ordinance.

B. Upon receipt of a completed application form and fee required by Subsection A above, the Borough Zoning Officer shall either issue the zoning permit or shall deny the permit, indicating in writing the reason for denial, which may include the reason that certain construction, alterations or uses require approval of the [Board] and/or the Borough Council, and/or the recommendations of the Borough Planning Commission as a condition to issuance of the zoning permit.

C. If denied a permit by the Borough Zoning Officer, the Applicant may appeal such decision to the [Board] for further consideration in accordance with the Pennsylvania Municipalities Planning Code and the [Borough] Zoning Ordinance. (R.R. at 104a (emphasis added).)

Orange Stones appealed to the Board, which held a hearing on July 16, 2009. By decision issued August 20, 2009, the Board reversed the decision of the zoning officer and granted Orange Stones‟ appeal. The Board concluded, inter alia, that the zoning officer erred in relying on Ordinance 765-09 in denying Orange Stones‟ zoning permit application because Ordinance 765-09 was not enacted pursuant to the Municipalities Planning Code (MPC), Act of July, 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Notwithstanding, the Board, perceptibly wary of Orange Stones‟ prior zoning permit applications seeking to use the Property as a rehabilitation center and halfway house, imposed conditions in granting Orange Stones‟ zoning permit application. The Board‟s decision provides, in pertinent part:

Orange Stones Co.‟s application for zoning permit for the use of a 20 guest room Hotel/Motel is GRANTED as a permitted use pursuant to the uses permitted in a VC Borough and Village Center Zoning District subject to the following conditions:

3. No Rehabilitation Center (Halfway House) as that term is defined in the Hamburg Zoning Ordinance shall be permitted on the Property; and

4. No supervision of occupants of the Property shall be provided except that which is necessary to secure property and personal safety; and

5. No curfews or hours restricting an occupant from leaving or entering the building shall be established; and

6. The Applicant and its successors shall comply with the Pennsylvania laws regarding fire and ...


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