Angelo v. York Township Zoning Board

60 Pa. D. & C.2d 14, 1972 Pa. Dist. & Cnty. Dec. LEXIS 90
CourtPennsylvania Court of Common Pleas, York County
DecidedJuly 21, 1972
Docketno. 415
StatusPublished

This text of 60 Pa. D. & C.2d 14 (Angelo v. York Township Zoning Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angelo v. York Township Zoning Board, 60 Pa. D. & C.2d 14, 1972 Pa. Dist. & Cnty. Dec. LEXIS 90 (Pa. Super. Ct. 1972).

Opinion

SHADLE, J.,

John A. Katz, as lessee of land owned by Irvin S. Naylor, applied to the York Township Zoning Hearing Board for a “special permit” (special exception) to construct and operate a club and recreational facilities on land zoned for residential use. After hearing, the board approved the application subject to certain conditions. John J. Angelo and Paul W. Moyer, adjacent property owners, appealed to this court from the action of the board. Katz, Naylor and York Township intervened as parties appellees.

Appellants petitioned the court for leave to take additional testimony on the appeal. Appellees filed answers opposing the petition, and argument thereon was had before the court en banc. We filed an order refusing the prayer of the petition and discharging the rule granted thereon. Since it was obvious that argument would be required on the merits of the appeal, we withheld the filing of an opinion until after hearing on the merits. Argument has now been had before the court en banc, and this opinion and order are filed on its behalf both [16]*16as to the petition to take additional testimony and the merits of the appeal.

PETITION TO TAKE ADDITIONAL TESTIMONY

Appellants asserted the following grounds for their petition to take additional testimony: (1) The parties testifying at the hearing were not sworn; (2) the record was not properly certified by the board to the court; (3) the transcripts of the board hearings were not properly verified; (4) a plan forming part of the record was not included therein; (5) the board improperly made a site inspection and received additional information from the applicant in the absence of appellants; (6) the applicant improperly communicated ex parte with the board; and (7) there was not filed a record of the subsequent meeting of the board to which the case was continued for decision.

The material alleged by the fourth and seventh reasons to be missing at the time appellants filed their petition has since been supplied and is part of the record.

It will at once be noted that each and every ground asserted for taking additional testimony concerns itself with an alleged error, act or omission. Not one of them alleges inadequacy or incompleteness of the record, and there is not the slightest reference as to how the r ecord can or should be supplemented, or with what. Appellants’ posture in this respect is emphasized by the fact that they allege every one of the reasons for requesting additional testimony as grounds for reversal on the merits. We shall deal with them individually in our discussion there.

The subject of additional testimony is covered by section 1009 of the Municipalities Planning Code of July 31, 1968, (No. 247), 53 PS 11009:

[17]*17“If no verbatim record of testimony before the board was made, or if upon motion, it is shown that proper consideration of the zoning appeal requires the presentation of additional evidence a judge of the court may hold a hearing to receive such evidence or may remand the case to the board or refer it to a referee to receive such evidence.” (Italics supplied.)

This section was interpreted in Boron Oil Company v. City of Franklin, 2 Comm. Ct. 152 (1971):

“This provision does not mean . . . that the court must receive additional evidence provided only that it is relevant. Such interpretation would not only nullify the discretion plainly conferred on the court, it would effectually remove from the Zoning Hearing Board the fact-finding function entrusted to it by the Legislature. It would further render meaningless the requirement that the proposed additional evidence be shown to be necessary for a proper consideration of the appeal. The appellant [in order to take additional testimony] was required to demonstrate that the record was incomplete either because it was refused the opportunity to be fully heard or that relevant testimony offered by it was excluded.”

Since there is a verbatim record of the testimony, appellants and their evidence were fully heard, and we find the record of the proceedings to be complete for a proper consideration of the appeal, it would have been improper for us to have ordered the taking of additional testimony. It was for this reason that appellants’ petition for that purpose was refused. However, it does not follow, as appellees argue, that because we find the record adequate for consideration, this means that the ultimate action of the board inevitably was correct. The merits of the application and its disposition by the board still remain for consideration.

[18]*18THE MERITS OF THE APPEAL

The factual situation regarding the area, the proposed project and the disposition of the board are admirably set forth in the written decision of the board.

Appellants’ attack is marshalled under four main headings. The first is that the applicant’s club is not, in fact, a permitted use which is entitled to a special exception under the ordinance. There is no dispute that “club room, club grounds, meeting hall” are enumerated uses permitted on special exception under section 200 of the ordinance. However, appellants argue that not any and all uses may be permitted simply because conducted by a “club,” and that the applicant’s project is not, in fact, a “club” in any event. They contend that because the organization is not yet in existence, and the applicant will have the right to select and control admissions to membership and the conduct of its affairs and will receive the income and pay the expenses of the operation, the project is merely a private business enterprise which is not a permitted use.

It is to be noted that by condition 12 of the board’s decision, the approval is specifically conditioned upon the formation and operation of the club in accordance with the recited details.

The ambiguity resulting from zoning ordinances enumerating as a permitted use such organizations or buildings as “clubs” or “club houses,” without further definition has troubled the courts as it did the board in this case. Permission for a club does not indicate what type of activity it may carry on. It can hardly be argued with reason, to use a ridiculous example, that anything so offensive as a pig farm or glue factory could be sanctioned in a residence district simply because it is conducted by a club. D.B.S. Building Association v. Erie, 177 Pa. Superior Ct. 487 (1955), noted this [19]*19problem and concluded that a club in this context was intended to mean an association of persons for the promotion of some common object, and not the building or premises occupied by the group. However, the factual situation there is of no help to us here.

It is clear that the mere fact that a charge is made for the use of the facilities and that the proprietor will thereby derive revenue therefrom does not convert what would otherwise be a recreational facility into a business. In Shapiro v. Zoning Board of Adjustment, 377 Pa. 621 (1954), in speaking of a zoning ordinance which permitted an athletic or amusement park in a residential district, the court said:

“. . . (There is no) merit in the . . . contention that the fact that the . . . [applicant] intends to make a charge for the use of the amusement devices renders the operation something other than an amusement park and, consequently, prohibited by the zoning laws. . . . \ . .

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Related

Temple University v. Zoning Board of Adjustment
414 Pa. 191 (Supreme Court of Pennsylvania, 1964)
D. B. S. Building Ass'n. v. Erie
111 A.2d 367 (Superior Court of Pennsylvania, 1955)
Archbishop O'Hara's Appeal
131 A.2d 587 (Supreme Court of Pennsylvania, 1957)
Shapiro v. Zoning Board of Adjustment
105 A.2d 299 (Supreme Court of Pennsylvania, 1954)
United Cerebral Palsy Ass'n v. Zoning Board of Adjustment
382 Pa. 67 (Supreme Court of Pennsylvania, 1955)
Kotzin v. Plymouth Township Zoning Board of Adjustment
149 A.2d 116 (Supreme Court of Pennsylvania, 1959)

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Bluebook (online)
60 Pa. D. & C.2d 14, 1972 Pa. Dist. & Cnty. Dec. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelo-v-york-township-zoning-board-pactcomplyork-1972.