Warminster Area Child Day Care Ass'n v. Upper Southampton Township Zoning Hearing Board

386 A.2d 1076, 35 Pa. Commw. 541, 1978 Pa. Commw. LEXIS 1067
CourtCommonwealth Court of Pennsylvania
DecidedMay 25, 1978
DocketAppeal, No. 815 C.D. 1977
StatusPublished
Cited by4 cases

This text of 386 A.2d 1076 (Warminster Area Child Day Care Ass'n v. Upper Southampton Township 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
Warminster Area Child Day Care Ass'n v. Upper Southampton Township Zoning Hearing Board, 386 A.2d 1076, 35 Pa. Commw. 541, 1978 Pa. Commw. LEXIS 1067 (Pa. Ct. App. 1978).

Opinion

Opinion by

Judge Rogers,

Warminster Area Child Bay Care Association, Inc. (hereinafter called the Center)1 appeals an order of the Court of Common Pleas of Bucks County affirming a decision of the Upper Southampton Township Zoning Hearing Board (Board) sustaining an order of a zoning officer directing the Center to cease and desist its summer day camp operations.

Since the year 1966, the Center has operated two programs for the protective care of children of working parents. One provides year-round daytime care and supervision for preschool children, ages 3 to 5, and the other provides daytime care for school aged children, ages 6 to 13, during the summer months when the children do not attend school. Until the events of this case, to be described, the programs were conducted at separate locations. In April 1971, the Center acquired a lot containing about 2.6 acres improved with a building, located in the R-l Residential zoning district of Upper Southampton Township. The Center had received confirmation from a towm[543]*543ship zoning officer on March 9, 1971 that the operation of a child day care center, which the zoning officer equated with one use of property as a school, was a permitted-use in the R-l zone under Section 400-2 of the then effective Township Zoning Ordinance (hereinafter referred to as old ordinance). In October of 1971, the Center sought and obtained from the Township Zoning Hearing Board a dimensional variance permitting it to construct an addition to its building. In that proceeding the Center described the proposed use of its premises as that of “Nursery School.” A building permit for the construction was issued by the township zoning officer on May 2, 1972, stating the use of the premises as “Day Care Center.”

On May 9, 1972, before the Center occupied its property, the township enacted a new Zoning Ordinance (hereinafter referred to as new ordinance), with an effective date of May 14, 1972. The new enactment permitted child day care facilities in the R-l Zone (in which the Center’s property was again located) only as a conditional use; that is, a use permitted conditioned upon approval of the township supervisors. The Center began operating its preschool child care program on the subject premises in February of 1973. It decided to move its summer program for the 6 to 13 year olds to the same location in January of 1974 and did so in the summer of that year. This latter program was simply a summer camp conducted outdoors on a portion of the 2.6 acre tract. The program was appropriately called Stars and Stripes Day Camp.

On July 3,1974, the township zoning officer served the following order on the Center:

Stars and Stripes Day Camp Operation is not a proper use under the Zoning Ordinance of Upper Southampton Township as it is an improper and illegal extension of prior use as [544]*544a Nursery Day Care Center. This use if permitted at all would require a petition to the Board of Supervisors for a Conditional Use [pursuant to Section 405(19) of Ordinance No. 119].
Therefore all use of premises for outdoor use for children of ages 6 to 13 years of age, is to cease at once, until further ordered by the Board of Supervisors. (Emphasis in original.)

The Center appealed the cease and desist order to the Board which made the following pertinent findings of fact and conclusions of law:

Findings of Fact

15. Camp Stars and Stripes had a staff consisting of college students who served as counsellors and youth corps and manpower workers who acted as aides. There was, at most, one certified teacher amongst the staff of Camp Stars and Stripes.
16. Neither Federal, State, or County Governments requires certified teachers for the operation of a program such as Camp Stars and Stripes.
17. Neither the Federal, State, or County Governments provides regulation or guidelines for the operation of a program such as Camp Stars and Stripes.
18. Camp Stars and Stripes uses the grounds at 460 Maple Avenue for various portions of its program. However, it does not use the structure located thereon for its activities, except on infrequent occasions by a small number of the camps children.
25. The structure located at 460 Maple Avenue was not renovated, constructed or al[545]*545tered to accommodate Camp Stars and Stripes nor is it used for that purpose.
26. There is no indication that when the appellants purchased the premises in April of 1971, or when they appeared before this Board for a variance in October of 1971 or when they applied for a building permit in March of 1972 that the subject premises would be used other than for a pre-school program.
27. Between 1966 and 1973, although the appellants operated both the pre-school program and the summer camp program, they were never operated at the same location.
28. When the appellants appeared before this Board in 1971 to request a variance the use of the premises was described as a ‘Nursery School.’
29. The pre-school program operated by appellants is essentially a nursery school with longer hours in order to meet the needs of the children’s working parents.
30. Camp Stars and Stripes as operated by the appellants is essentially a summer day camp.
37. Appellants never stated their intention to use the subject premises for a ‘summer camp’ in their applications for zoning, use or building permits or in their previous application for a variance from this Board.
38. Substantially all of the improvements made to the subject premises were to accommodate the pre-school program.
45. Under Section 405(19) of Ordinance No. 119 ‘Day Nursery, Nursery School, Kindergarten or other agency giving day care to chil[546]*546dren, whether or not conducted as a private, gainful business’ require conditional use approval before operation in an R-l Residential Zone.
46. Under Section 905 of Ordinance No. 119 only the Board of Supervisors of Upper Southampton Township has the power to approve applications for a conditional use.
48. Appellants never applied for a zoning use permit or a conditional use for Camp Stars and Stripes.
Conclusions op Law
7. The Zoning Officer properly issued a cease and desist order on July 3, 1974 to the appellant regarding its use of the subject premises for Camp Stars and Stripes.

The court below affirmed the Board without taking additional evidence.

Where, as here, the court below takes no additional evidence, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. V.S.H. Realty, Inc. v. Zoning Hearing Board, 27 Pa. Commonwealth Ct. 32, 365 A.2d 670 (1976).

Section 405 of the new zoning ordinance provides for the following uses to be established in the R-l Residential district:

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Bluebook (online)
386 A.2d 1076, 35 Pa. Commw. 541, 1978 Pa. Commw. LEXIS 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warminster-area-child-day-care-assn-v-upper-southampton-township-zoning-pacommwct-1978.