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Philadelphia Suburban Development Corp v. Scranton Zoning Hearing Board

April 5, 2012


The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: December 13, 2011



Philadelphia Suburban Development Corporation (Developer) appeals an order of the Court of Common Pleas of Lackawanna County (trial court) denying its application for an accessory use. In doing so, the trial court affirmed the decision of the Scranton Zoning Hearing Board (Board) that the creation of housing for pre-release inmates and parolees was not a use customary and incidental to an office use. Instead, the Board found that Developer‟s proposed facility is not permitted under the City of Scranton Zoning Ordinance (Zoning Ordinance).*fn2 Discerning no error in the Board‟s decision, we affirm.

Developer owns an office building located at 430 Penn Avenue in Scranton, Pennsylvania, located in the Commercial Downtown District. The Zoning Ordinance permits offices in the CD District. The Pennsylvania Board of Probation and Parole leases office space on the first floor of Developer‟s building at 430 Penn Avenue.

The Pennsylvania Department of Corrections (Department) has a community corrections center in Scranton and wants to relocate to Developer‟s building, which offers larger quarters. A "community corrections center" is a "half-way house" for inmates on work release and parolees who live there while transitioning back into the community. Certified Record Item No. 3.*fn3 Developer wants to lease the basement of its building to the Department for office space and the second floor for a community corrections center.

Developer sought the necessary zoning approvals. Use of the basement as office space is expressly permitted by the Zoning Ordinance. Developer asserted that the second floor community corrections center was a permitted use because it was accessory to the principal use, i.e., the offices in the basement.

Section 202 of the Zoning Ordinance defines "accessory use," in relevant part, as follows:

A use customarily incidental and subordinate to the principal use or building and located on the same lot with such principal use or building.

ZONING ORDINANCE, December 1993, art. II, §202, p. 2-2 (emphasis added). Section 306.B of the Zoning Ordinance lists accessory uses that are specifically permitted in the CD District, such as a "day care center accessory to a place of worship." ZONING ORDINANCE, December 1993, art. III, §306.B, p. 3-13. Section 306.B does not specify that a living area is accessory to office space. Section 306.C of the Zoning Ordinance, entitled "Permitted Accessory Uses in All Districts," also enumerates accessory uses, such as fences and signs, which do not apply here.*fn4 Finally, Section 306.C(28) contains a catch-all provision that allows:

Such other accessory use or structure that the applicant proves to the satisfaction of the Zoning Officer is clearly customary and incidental to a permitted by right, special exception or conditional principal use.

ZONING ORDINANCE, December 1993, art. III, §306.C(28), p. 3-17 (emphasis added). Developer asserted that the community corrections center should be approved because it is "clearly customary and incidental" for the Department to have housing in the same building as its offices.

By letter dated August 5, 2010, the Zoning Enforcement Officer, who had approved the office use request, denied the community corrections center proposal as a use not authorized in the CD District. Developer appealed to the Board. It requested an interpretation of the Zoning Ordinance that the proposed second floor residential facility was a permitted accessory use to the offices in the building. In the alternative, Developer requested a variance to operate a community corrections center. The Board held hearings on September 16, 2010, and October 13, 2010.

Developer‟s vice president, Mark Nicoletti, appeared and testified in support of the request to set up a community corrections center. Developer proposed a facility with 36 beds on the second floor, staff on site at all times and on-site counseling for the residents.*fn5 Developer submitted a copy of a community corrections center resident handbook, which explains, inter alia, that residents must sign in and out of the building. If a resident leaves without permission, fails to report to the authorized destination or fails to ...

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