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, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE BROBSON. DISSENTING OPINION BY JUDGE LEAVITT.
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
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 ...