Sateach v. Beaver Meadows Zoning Hearing Board of Appeals

676 A.2d 747, 1996 Pa. Commw. LEXIS 205
CourtCommonwealth Court of Pennsylvania
DecidedMay 21, 1996
StatusPublished
Cited by11 cases

This text of 676 A.2d 747 (Sateach v. Beaver Meadows Zoning Hearing Board of Appeals) 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
Sateach v. Beaver Meadows Zoning Hearing Board of Appeals, 676 A.2d 747, 1996 Pa. Commw. LEXIS 205 (Pa. Ct. App. 1996).

Opinion

KELTON, Senior Judge.

Paul Sateach appeals from the July 13, 1995 order of the Court of Common Pleas of Carbon County (trial court) which reversed in part and affirmed in part the decision of the Beaver Meadows Zoning Hearing Board (Board). We affirm in part and reverse in part the decision of the trial court.

Mr. Sateach owns and operates an auto body/auto repair shop called Paul’s Auto Body in the Borough of Beaver Meadows. He holds three permits authorizing him to perform auto refinishing and auto repairs in an R-2 district. The original permit authorized Mr. Sateach to operate his business between the hours of 8:00 a.m. and 5:00 p.m., Monday through Saturday.1

On July 5,1994, the Borough zoning officer issued Mr. Sateach a cease and desist order concerning alleged zoning violations on the business premises. Mr. Sateach was cited for the storage of tires, the sale of tires, the operation of a 24-hour towing service, operation of the business beyond the hours of 8:00 a.m. and 5:00 p.m., and parking violations. The Board held public hearings and took testimony.

On October 18, 1994, the Board issued its decision, determining that Mr. Sateach was in violation of the zoning ordinance by selling and repairing tires on the property and by operating a 24-hour towing service. The Board found, however, that the towing service operated by Mr. Sateach during normal business hours was incidental to the auto repair business and did not violate the zoning ordinance. The Board further found that Mr. Sateach did operate his business beyond the hours permitted in the original permit and that any operation beyond those hours constitutes a violation of the zoning ordi[749]*749nance. The Board ordered that all violations must cease at once.

Mr. Sateach appealed the decision of the Board to the trial court which affirmed in part and reversed in part. The trial court held that the sale and repair of tires constitutes usual automotive repair activity within the purview of the permits granted to Mr. Sateach and reversed the decision of the Board on this issue. Also, the trial court held that a 24-hour towing service was not a customary accessory use to the operation of an auto repair service, thereby affirming the decision of the Board. The trial court further held, however, that a towing service operated during business hours was an accessory use requiring a separate permit from the Board. The trial court, therefore, reversed the decision of the Board insofar as it permitted operation of a towing service during normal business hours. The trial court affirmed the Board on all other matters. Mr. Sateach now appeals the order of the trial court to this Court.2

Mr. Sateach argues that the Board abused its discretion in finding that the 24-hour towing service is not an incidental accessory use pursuant to § 2.101 of the Borough zoning ordinance.3 He contends that a towing service is clearly incidental to the principal use of an auto repair garage and that a 24-hour towing service is a necessary adjunct to the operation of an auto repair garage. He contends that no business will continue to operate without attracting customers and that the purpose of the towing service is to attract customers. Further, he argues that no evidence was offered to rebut his testimony that a towing service is an integral and incidental part of the operation of an auto repair garage.

We must reject Mr. Sateach’s argument that a 24-hour towing service is incidental to the operation of an auto body/auto repair shop. The towing of vehicles onto the premises at all hours of the night would be patently disruptive and a nuisance to the residential neighborhood. In light of the fact that the auto body/auto repair shop was never permitted to operate beyond the hours of 8:00 a.m. and 5:00 p.m., the towing of vehicles onto the premises beyond those hours would violate the spirit, if not the letter, of the original permit and the zoning ordinance. Therefore, the Board did not err in holding that a 24-hour towing service violated the zoning ordinance and we affirm that aspect of the trial court’s order.

The trial court reversed the Board’s decision that the towing service during normal business hours was a permissible accessory use and concluded that Mr. Sateach violated the zoning ordinance by operating the towing service without a permit from the Board. Mr. Sateach argues, however, that the trial court exceeded its appellate review capacity by reviewing this issue because it was not properly before it on appeal. Specifically, Mr. Sateach argues that nowhere in the record before the Board is there any indication that he must have permits for accessory uses. The Board never addressed the issue of whether Mr. Sateach needed a permit to operate a towing service during normal business hours and the Board’s decision on that issue was never appealed to the trial court.

The Borough zoning ordinance allows uses which are “accessory to” a permitted principal use and does not specifically require a permit for such accessory uses. Generally, accessory uses include activities which are a part of or incident to the principal use. For example, a car wash is a use accessory to and of the same general character as a garage or repair shop, gas and oil service station. Sunoco Oil Co. v. Zoning Board of Adjustment, 44 Pa.Cmwlth. 572, 405 A.2d 566 (1979); see also Novello v. Zoning Board of Adjustment, 384 Pa. 294, 121 A.2d 91 (1956); Dale’s Esso, Inc. v. Zoning Hearing Board of Upper Moreland Township, 61 D. & C.2d [750]*75062 (Montg.1973) (towing service providing 25% of service station’s total revenue is accessory use). The Board concluded that a towing service operated during normal business hours is a legitimate accessory use to an auto body/auto repair shop.

The trial court opined, however, that the zoning ordinance requires Mr. Sateach to obtain a permit to operate a towing service as an accessory use. First, the trial court found that the towing service is a change in use of the building or lot which requires a permit under Section 6.101 of the zoning ordinance. The trial court further relies upon Section 4.201 of the zoning ordinance which lists permitted uses which do not require special action by the Board or Planning Commission. An accessory use in an R-2 district is not listed. The trial court concluded that an accessory use in an R-2 district requires a permit. With due respect to the trial court, we disagree.

An accessory use is simply a use subordinate to the principal use and which is customarily incidental to the principal use. Once something is defined as an accessory use, it is allowed by right. See Food Corporation v. Zoning Board of Adjustment of the City of Philadelphia, 384 Pa. 288, 291, 121 A.2d 94, 95-96 (1956) (If use of land for off-street parking is accessory use customarily incidental to operation of restaurant, applicant is entitled to accessory use as matter of right.)

The trial court erred in holding that the towing of vehicles onto the business premises with the intention of fixing them is a change in use of the building or lot. Although it may not constitute actual “repair” of the vehicle, towing a disabled vehicle to the lot to be repaired is clearly a use which is customary and incidental to the repair itself.

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Bluebook (online)
676 A.2d 747, 1996 Pa. Commw. LEXIS 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sateach-v-beaver-meadows-zoning-hearing-board-of-appeals-pacommwct-1996.