B & B Shoe Products Co. v. Zoning Hearing Board

368 A.2d 1332, 28 Pa. Commw. 475, 1977 Pa. Commw. LEXIS 674
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 4, 1977
DocketAppeal, No. 7 C.D. 1976
StatusPublished
Cited by11 cases

This text of 368 A.2d 1332 (B & B Shoe Products Co. v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B & B Shoe Products Co. v. Zoning Hearing Board, 368 A.2d 1332, 28 Pa. Commw. 475, 1977 Pa. Commw. LEXIS 674 (Pa. Ct. App. 1977).

Opinion

Opinion by

Judge Blatt,

This is an appeal from an Order of the Court of Common Pleas of Lancaster County which reversed the Manheim Borough Zoning Hearing Board’s (Board) denial of an application for a special exception so that the B & B Shoe Products. Company (B & B) could expand its nonconforming use.

B & B proposed to build an addition to its shoe manufacturing plant located in a district which, after the business had been established, had been zoned R-3 Residential. As a lawful nonconforming use, B & B needed the Board’s approval to expand, as prescribed by Section 1801(1) of the Manheim Borough Zoning Ordinance (Ordinance):

Expansion op Nonconforming Uses. A nonconforming use shall not be expanded unless an appeal has been filed with the Zoning Hearing Board and such expansion has been approved as a special exception. The Board shall apply the following criteria:
[477]*477a. The proposed expansion shall not exceed fifty (50) percent of the square foot area used at the time this Zoning Ordinance becomes effective.
b. The proposed expansion shall not cause an increased detrimental effect on surrounding properties.

After a hearing, the Board denied the special exception1 without making specific findings of fact. On appeal to the Court of Common Pleas of Lancaster County, the Borough of Manheim (Borough) intervened and requested that the matter be remanded to the Board for specific findings, and this was done. The Board then forwarded findings to the court that the B & B property, prior to any expansion, did not have sufficient parking facilities as required under Section 1402.9 of the Ordinance,2 and that the proposed expansion would further reduce the area that could be used for off-street employee parking.3 On the basis of these findings, the Board concluded that “[t]he proposed expansion would be detrimental to the public health, safety and welfare of the surrounding area in that it would cause an increased detri[478]*478mental effect on the surrounding properties.” The lower court reversed., ordering the Board to grant the special exception on the ground that the Board’s conclusion concerning the, detrimental effect of the expansion was not supported by the evidence. The Borough has now appealed.

Our scope of review where, as here, the lower court has taken no additional evidence is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Marwood Rest Home, Inc. v. Zoning Board of Adjustment, 22 Pa. Commonwealth Ct. 567, 349 A.2d 800 (1976). The court below, of course, was prohibited from substituting its. own findings and conclusions unless the Board had capriciously disregarded the evidence or manifestly abused its discretion. Lower Southampton Township v. B. P. Oil Corp., 16 Pa. Commonwealth Ct. 108, 329 A.2d 535 (1974).

On the basis of the record, We do not believe, that the Board did abuse its discretion in denying the special. exception requested by B & B. Our Supreme Court has clearly held that whether or not sufficient parking space is available may properly be considered when a zoning board is asked to approve a special exception for expansion of a nonconforming use, Everson v. Zoning Board of Adjustment, 395 Pa. 168, 149 A.2d 63 (1959), and the Board here had complaints from several neighborhood residents that a parking problem existed in the vicinity of the B & B property. The record also contains a petition signed by twenty-four residents of the street on which the shoe factory is located, requesting the Board to prohibit B & B’s expansion for several reasons, including the “present and potential parking problems and traffic congestion due to the increasing number of employees and deliveries'.”

[479]*479The president of B & B admitted that, if the proposed expansion were approved, he would hire twenty-eight to thirty persons in addition to the approximately forty persons presently employed. As to the parking problem, he presented a letter to the Board from the trustees of a nearby church which granted permission for B & B employes to use the church parking lot “as long as it does not conflict with any church activities.” The Board, in its discretion, specifically found this arrangement to be unsatisfactory because parking would not be permitted during weekday funerals and because the agreement could be terminated by the church ait any time. Although this Court may have decided differently, neither we nor the court below may impose our own findings, and we believe that the court below erred when it attempted to do so.

B & B argues that the Board committed an error of law when it imposed on the company the burden of proving that the expansion, if approved, would not cause an increased detrimental effect on surrounding properties. And, ordinarily, once an applicant for a special exception shows that the proposed use is permitted under the ordinance, the burden of establishing that such use would violate the health, safety, and welfare of the community does fall upon those who oppose the issuance of a special exception. Fantastic Plastic, Inc. v. Zoning Board of Adjustment, 16 Pa. Commonwealth Ct. 455, 332 A.2d 577 (1975). Placing the burden upon the protestants is consistent, of course, with the principle that a property owner has a constitutional right to expand a lawful nonconforming use to meet natural business expansion so long as the health, safety, and welfare of the community is not jeopardized. Thayer v. Lower Milford Township, 16 Pa. Commonwealth Ct. 124, 343 A.2d 92 (1974). However, it is also the policy of the law to restrict [480]*480closely such nonconforming uses and to construe strictly provisions in zoning ordinances which provide for their continuance. Hauser v. Zoning Hearing Board, 20 Pa. Commonwealth Ct. 313, 341 A.2d 566 (1975).

We have, upheld ordinances which contain specific requirements and which impose on the applicant an initial duty to show that he has complied with them. Zoning Board of Adjustment v. Liberty Bell Medical Center, 17 Pa. Commonwealth Ct. 213, 331 A.2d 242 (1975); Marwood Rest Home, Inc. v. Zoning Board of Adjustment, 22 Pa. Commonwealth Ct. 567, 349 A.2d 800 (1976). Furthermore, we have discussed the shifting of the burden of proof from those who oppose a special exception to the applicant therefor:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harrisburg Gardens, Inc. v. Susquehanna Township Zoning Hearing Board
981 A.2d 405 (Commonwealth Court of Pennsylvania, 2009)
Council Rock School District v. Wrightstown Township Zoning Hearing Board
709 A.2d 453 (Commonwealth Court of Pennsylvania, 1998)
Kadi v. Zoning Hearing Board
457 A.2d 1042 (Commonwealth Court of Pennsylvania, 1983)
Ramondo v. Zoning Hearing Board
434 A.2d 204 (Commonwealth Court of Pennsylvania, 1981)
Timber Place Associates v. Plymouth Township Zoning Hearing Board
430 A.2d 403 (Commonwealth Court of Pennsylvania, 1981)
Dziedzic v. Zoning Hearing Board
22 Pa. D. & C.3d 216 (Montgomery County Court of Common Pleas, 1980)
In re Appeal of French Adult Books, Inc.
404 A.2d 740 (Commonwealth Court of Pennsylvania, 1979)
St. George's Episcopal Church v. Board of Appeals
380 N.E.2d 437 (Appellate Court of Illinois, 1978)
Township of Kelly v. Zoning Hearing Board
388 A.2d 347 (Commonwealth Court of Pennsylvania, 1978)
Fazio v. Zoning Hearing Board
378 A.2d 1299 (Commonwealth Court of Pennsylvania, 1977)
Riddle Paddock, Inc. v. Zoning Hearing Board
374 A.2d 98 (Commonwealth Court of Pennsylvania, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
368 A.2d 1332, 28 Pa. Commw. 475, 1977 Pa. Commw. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/b-b-shoe-products-co-v-zoning-hearing-board-pacommwct-1977.