Muse v. Zoning Hearing Board

415 A.2d 1255, 52 Pa. Commw. 287, 1980 Pa. Commw. LEXIS 1593
CourtCommonwealth Court of Pennsylvania
DecidedJune 23, 1980
DocketAppeal, No. 1162 C.D. 1979
StatusPublished
Cited by9 cases

This text of 415 A.2d 1255 (Muse 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
Muse v. Zoning Hearing Board, 415 A.2d 1255, 52 Pa. Commw. 287, 1980 Pa. Commw. LEXIS 1593 (Pa. Ct. App. 1980).

Opinion

Opinion by

Judge Craig,

Charles H. Muse, Jr. (objector) appeals from the May 1, 1979 order of the Court of Common Pleas of Allegheny County affirming the action of the Zoning Hearing Board of Ben Avon Heights Borough (board) which dismissed appellant’s appeal from the grant of a permit to intervening appellee Shannopin Country Club (Shannopin) for construction of tennis courts on Shannopin property in the borough.

The Ben Avon Heights Zoning Ordinance of 1952 classified the entire borough as a residential district; there is no question that Shannopin, before and since that time, has maintained and operated a country club on its property. Currently, the club offers golf, swimming, platform or paddle tennis, and skeet shooting, and also various activities conducted in its clubhouse. In late 1974, Shannopin’s officers applied for and were granted a permit to construct tennis courts in an area of Shannopin’s property which shares a boundary with objector’s land. On appeal, the board affirmed the zoning officer’s grant of the permit for the proposed courts as a reasonable expansion or extension of Shannopin’s non-conforming use. Judge Watson, of the court below, without taking additional evidence, affirmed the board’s decision, and this appeal followed, requiring us to decide whether the board abused its discretion or erred as a matter of law.1

In this case, accepting the legal non-conforming use status of Shannopin’s country club, we must be guided by the now well-established principles govern[290]*290ing expansion of such uses, under general rules apart from specific ordinance provisions. Those principles were eapsulized in Philadelphia v. Angelone, 3 Pa. Commonwealth Ct. 119, 280 A.2d 672 (1971), where Judge Rogers wrote:

With respect to the question before us in this matter, certain principles have been developed which are clear, reasonable and consistent with constitutional principles. Structures may be erected on open land previously devoted to a non-conforming use, as of right. However, the erection of structures upon land not previously so used, may only be accomplished by way of variance. . . . Pierce Appeal, 384 Pa. 100, 119 A.2d 506 (1956); Mack Appeal, 384 Pa. 586, 122 A.2d 48 (1956).

3 Pa. Commonwealth Ct. at 128, 280 A.2d at 677.

Thus, in reviewing the board’s approval of the expansion without a variance, the threshold question is whether the land on which Shannopin proposes to locate the courts has been devoted to the country club’s non-conforming use. The record reveals that the proposed location has been consistently maintained, at least as a part of Shannopin’s landscaped greensward, and that it has been used for intermittent golf instruction, as part of a practice area, and to some extent for vehicle parking. To counter that evidence of usage, appellant points to the testimony of Shannopin’s golf pro, which indicated that the proposed site was never the intended target area, but was rather the inadvertent off-target destination of practice shots; appellant urges that those uses demonstrated by Shannopin are plainly casual and therefore the land is undevoted or “new” land within the doctrine of expansion.

We are not persuaded that the board erred in concluding that the land in question has been devoted to [291]*291Shannopin’s non-conforming nse. As in DiNardo v. City of Pittsburgh, 15 Pa. Commonwealth Ct. 279, 325 A.2d 654 (1974), we will not re-evalnate the weight and credibility of the conflicting testimony adduced before the board. Moreover, the testimony as to the kinetic use being intermittent or inadvertent does not compel a conclusion that the use has been meaningless, just as the rough should not be treated as apart from a golf course simply on the ground that it is an object of avoidance rather than desire.

Because no abuse is manifest in the board’s conclusion that the location was in fact devoted to Shannopin’s non-conforming use, Shannopin is therefore entitled to erect a structure in furtherance of that use. Clearly, the construction of tennis courts is a natural expansion of Shannopin’s country club activity; the increasing demand for racquet sports facilities as alternative recreational activities is plain in our society today.

Objector also contends that the board abused its discretion in concluding that the proposed tennis courts will not be detrimental to the public welfare, safety or health. Admittedly, the doctrine of natural expansion yields when it is demonstrated that the proposed expansion is unreasonable or detrimental to the welfare of the community. Township of Lower Yoder v. Weinzierl, 2 Pa. Commonwealth Ct. 289, 276 A.2d 579 (1971). In that regard, the board found that the courts would cause “ some amount of noise, traffic and obstruction of view, but not disproportionate to the other recreational uses now conducted at the Club, including the use of the swimming pool immediately adjacent to the proposed general site.” We have reviewed the record carefully, and we find no abuse of discretion on the board’s part in so concluding.

As another element of alleged public detriment, objector argues that the construction of the courts on [292]*292the proposed site will alter the present drainage pattern, resulting in increased run-off from Shannopin’s property onto objector’s adjacent land, with consequent increased erosion there. Objector also alleges a danger in the potential for landslides at the location.

These propositions, supported by engineering testimony, were squarely contested by testimony of Shannopin’s consulting engineer and its landscape architect, whose testimony indicated that the run-off problem and landslide potential would be minimal if the courts were constructed according to their recommendations. Moreover, even objector’s engineering testimony indicated that the danger could be minimized with proper construction and grading.

As to the landslide danger, the board found that “it has been demonstrated that the courts can be constructed in such a manner as to avoid any potential danger [from landslides] to the public health, safety or welfare.” We can find no error or abuse of discretion in that conclusion.2

With reference to the increased rate of water runoff onto objector’s property due to the topographic changes associated with the construction, the board stated that some erosion was likely to occur, ‘ ‘ although the severity of such erosion is not apparent.” We hold that the board properly concluded, notwithstanding the possibility of such erosion, that

[i]n any event, this is a matter which would affect only the Appellants, not the general public or even the other residents in the immediate [293]*293vicinity. Although the Appellants are members of the public, the determination of property rights between two adjoining landowners is essentially private in nature.

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Bluebook (online)
415 A.2d 1255, 52 Pa. Commw. 287, 1980 Pa. Commw. LEXIS 1593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muse-v-zoning-hearing-board-pacommwct-1980.