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Galzerano v. Zoning Hearing Board

Commonwealth Court of Pennsylvania

May 30, 2014

Louis Galzerano, Appellant
v.
The Zoning Hearing Board of Tullytown Borough

Argued: December 9, 2013.

Appealed From No. 2012-02080. Common Pleas Court of the County of Bucks. Cepparulo, J.

Henry E. Van Blunk, Yardley, for appellant.

Michael T. Sellers, Newtown, for appellee Tullytown Borough.

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge[1], HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE BROBSON. DISSENTING OPINION BY JUDGE LEAVITT.

OPINION

Page 892

P. KEVIN BROBSON, Judge.

Louis Galzerano (Galzerano) appeals an order of the Court of Common Pleas of Bucks County (trial court), which affirmed the decision of the Zoning Hearing Board of Tullytown Borough (Board). In doing so, the trial court upheld the Board's denial

Page 893

of Galzerano's application for a use and occupancy certificate to operate a crematory in a commercial building he leases in Tullytown Borough. For the reasons set forth below, we affirm.

Galzerano is the sole owner of Bucks County Crematories and has been a funeral director for more than 30 years. Galzerano operates a funeral home in Levittown, Bristol Borough, Bucks County. Galzerano's funeral home has an on-site crematory. In response to increased demand for cremation services, Galzerano sought to open a new crematory in Tullytown.

Galzerano entered into a lease agreement for a commercial building located at 71 Fox Drive in Tullytown. The building is approximately 4,321 square feet and is located in a Light Industrial (LI) District, across from a landfill. (Amended Reproduced Record (R.R.) 223a.) Mortuaries and funeral homes are permitted uses in the LI District under the Tullytown Borough Zoning Ordinance (Ordinance). (R.R. 184a.)

On October 28, 2011, Galzerano applied for a use and occupancy certificate for the property, identifying the proposed commercial use as a crematory. The Ordinance, however, does not include a commercial land use category for crematory. On November 22, 2011, Tullytown Borough's zoning officer denied the application because " a Crematory is not a permitted use in the Light Industrial Zoning District." (R.R. 85a.) Galzerano appealed to the Board, which held a hearing on January 26, 2012. At the hearing, Galzerano testified to the physical characteristics of the proposed crematory, its operation, and the associated environmental and health considerations. When asked whether funeral services would be conducted at the proposed crematory, Galzerano responded:

Yes. There would be situations especially dealing with different religions where they might -- a family group might want to come and have a final prayer or some people might just want to witness the actual container going into the retort. There is (sic) various reasons why people might do this.

(R.R. 36a.) Galzerano also testified that the proposed crematory will serve customers from Galzerano's funeral home in Levittown and other area funeral homes. Indeed, he testified that the crematory will only accept bodies for cremation from a funeral home and will only release the remains to the funeral home of origin:

Q. After the process is done, what happens to the ashes?
A. They are swept out, processed and returned the next day to the funeral home of origin, back to the funeral home.
Q. Could somebody use the crematory services without going through the funeral home?
A. No.

(R.R. 37a.)

On February 23, 2012, the Board issued a decision and order denying Galzerano's application. The Board found that a crematory is most analogous to an incinerator use, which is permitted only in Tullytown Borough's Solid Waste District. (R.R. 90a.) The Board found that a crematory is only permitted in the LI District as an accessory use to a funeral home or mortuary, citing this Court's decision in Rabenold v. Zoning Hearing Board of the Borough of Palmerton, 777 A.2d 1257 (Pa. Cmwlth. 2001). The Board also rejected Galzerano's claim that a crematory is the same use as a mortuary or funeral home, both of which are permitted uses in the LI District. It held that Galzerano failed to present any evidence to support such a claim.

Page 894

Galzerano appealed to the trial court, which did not receive additional evidence. On March 12, 2013, based on the record before the Board, the trial court denied Galzerano's appeal. In its opinion in support of its order, the trial court held that the proposed crematory does not fall under the commonly accepted definition of a " funeral home," because its primary purpose will be to perform cremation services for funeral homes (Galzerano's and others) and funeral services would only be held at the crematory in certain limited circumstances. Galzerano appealed to this Court.

Our review in land use appeals where the trial court takes no additional evidence is limited to determining whether the zoning hearing board committed an error of law or abused its discretion. Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., 944 A.2d 832, 837-38 (Pa. Cmwlth. 2008). On appeal, Galzerano argues that the Board erred in denying his application for a use and occupancy certificate, because, under the Ordinance, a crematory is a permitted use in the LI District. Specifically, Galzerano contends that because the Ordinance does not define or even mention crematories, the Board should have construed the Ordinance in his favor and against any implied restriction on his use of the property.[2]

Whether a proposed use falls within a given category of permitted uses in a zoning ordinance is a question of law. H.E. Rohrer, Inc. v. Zoning Hearing Bd. of Jackson Twp., 808 A.2d 1014, 1016 (Pa. Cmwlth. 2002). " [A] zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference" because, " as the entity charged with administering a zoning ordinance, [it] possesses knowledge and expertise in interpreting that ordinance." City of Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006). In interpreting zoning ordinances, this Court relies upon the common usage of the words and phrases contained therein and will construe that language in a sensible manner. Ruley v. West Nantmeal Twp. Zoning Hearing Bd., 948 A.2d 265, 269 (Pa. Cmwlth. 2008). Accordingly, the mere fact that the Ordinance does not provide a definition of " funeral home" does not itself render the Ordinance ambiguous. In this situation, we look to guidance from definitions found in statutes, regulations, or the dictionary. H.E. Rohrer, Inc., 808 A.2d at 1017.

The word crematory does not appear in the Ordinance. Galzerano's primary contention, then, is that the Board should have granted his use application because his proposed crematory is a funeral home, which is a permitted use in the LI District. Under a commonly accepted definition, a " funeral home" is " an establishment with facilities for the preparation of the dead for burial or cremation, for the viewing of the body, and for funerals." Webster's Third New International Dictionary 922 (2002).[3] Applying this commonly

Page 895

accepted definition,[4] we agree with the trial court that the proposed stand-alone crematory is not a funeral home.[5] A use for " the preparation of the dead for burial or cremation" is not the same as a use where the actual burial or cremation occurs.[6] If it were, a cemetery would be a funeral home. Moreover, funeral homes are generally understood as facilities that provide professional services directly to the families and loved ones of the deceased. Galzerano testified before the Board, however, that the crematory will not be open to the public. When asked specifically whether a family or loved one could secure the services of the proposed crematory directly, Galzerano testified that they could not. Instead, they would have to go through a funeral home, his or other funeral homes to which his proposed crematory would provide services. In his own testimony before the Board, then, Galzerano drew distinctions between the proposed stand-alone crematory and a funeral home.[7]

For these reasons, we see no reversible error by the Board or the trial court in differentiating between a funeral home, which provides professional services to the public on one hand, and a stand-alone crematory that provides cremation services to funeral homes on the other.[8] Accordingly, we affirm the trial court's order.

Page 896

ORDER

AND NOW, this 30th day of May, 2014, the order of the Court of Common Pleas of Bucks County dated March 12, 2013, in the above-captioned matter is hereby AFFIRMED.

DISSENT

DISSENTING OPINION

MARY HANNAH LEAVITT, Judge

Respectfully, I dissent. Because the Tullytown Borough Zoning Ordinance does not define or even mention crematories, the Board and the trial court should have construed the Ordinance in Galzerano's favor and against any implied restrictions on his use of his property. Accordingly, I would reverse.

As noted by the majority, a zoning hearing board's interpretation of its own zoning ordinance is generally entitled to great weight and deference. City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006). However,

[i]t is fundamental that restrictions imposed by zoning ordinances are in derogation of the common law and must be strictly construed. Such restrictions must not be so construed as to fetter the use of the land by implication. The permissive widest use of the land is the rule and not the exception, unless specifically restrained in a valid and reasonable exercise of the police power.

Fidler v. Zoning Board of Adjustment of Upper Macungie Township, 408 Pa. 260, 182 A.2d 692, 695, 54 Mun. L Rep. 45 (Pa. 1962) (citations omitted). Thus, zoning ordinances that are clear and free from any ambiguity are not open to interpretation, but ambiguous language is to be read in a property owner's favor and against any implied extension of a restriction. Isaacs v. Wilkes--Barre City Zoning Hearing Board, 148 Pa.Cmwlth. 578, 612 A.2d 559, 561 (Pa. Cmwlth. 1992). In interpreting zoning ordinances, this Court relies upon the common usage of the words and phrases contained therein and will construe that language in a sensible manner. Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d 265, 269 (Pa. Cmwlth. 2008).

In the present case, the word " crematory" does not appear in the Ordinance. Funeral homes and mortuaries are permitted uses in the LI District, but the Ordinance does not define those terms. Under a commonly accepted definition, a " funeral home" is " an establishment with facilities for the preparation of the dead for burial or cremation, for viewing of the body, and for funerals." Webster's Third New International Dictionary 922 (2002).

Galzerano testified about the operations of the proposed crematory, which will include

Page 897

preparing bodies for cremation and then performing the cremation. He also testified that some funeral services would be held at the crematory. In light of the foregoing uncontested testimony, and construing the Ordinance in the least restrictive manner, I would hold that Galzerano's proposed crematory is analogous to a " funeral home" because it will serve many of the same functions as a funeral home.

I disagree with the majority's reliance upon Rabenold v. Zoning Hearing Board of the Borough of Palmerton, 777 A.2d 1257 (Pa. Cmwlth. 2001). In that case, the landowner was permitted to operate a crematory as an accessory use to an existing funeral home, which had been allowed as a permitted " retail use" under the applicable zoning ordinance. Rabenold is inapposite because it involved a different zoning ordinance than the one at bar. The Court did not announce a statewide rule that a crematory can only be allowed where it is next to or part of a traditional funeral home. Nor did Rabenold establish that a crematory cannot be a principal use in Tullytown Borough. In so holding, the majority overlooks Galzerano's uncontested testimony that funeral services will be conducted in the crematory. Such testimony was neither elicited nor necessary in Rabenold because the landowners in that case intended to operate their crematory in a physical addition to their existing funeral home.

Finally, the majority discusses, but does not overrule, the Board's finding that the proposed crematory use " clearly falls within the definition of an incinerator." Reproduced Record at 90a. I would hold that the Board erred in that regard. The Ordinance defines an " incinerator" as a facility " consist[ing] of ... furnaces" that is " designed to reduce municipal waste by combustion." Ordinance § 185-19(J)(2). Although an incinerator and a crematory both contain a furnace, a crematory is not designed to dispose of municipal solid waste. The Board's contrary, and unfortunate, finding fails to afford human remains the respect and dignity to which they are entitled and do receive from funeral homes. This leaves unanswered the question of whether a stand-alone crematory is allowed anywhere in the Borough.

For all of these reasons I would reverse the trial court's order affirming the Board's denial of Galzerano's application for a use and occupancy certificate.


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