NOAH'S ARK v. Zoning Hearing Bd.

• Decision Date: 07 August 2003
• Citation: 831 A.2d 756
• Parties: NOAH'S ARK CHRISTIAN CHILD CARE CENTER, INC. and Strassburger McKenna Gutnick & Potter, Trustee v. ZONING HEARING BOARD OF WEST MIFFLIN v. Borough of West Mifflin and Second Baptist Church of Homestead. Appeal of Borough of West Mifflin. Noah's Ark Christian Child Care Center, Inc. and Strassburger McKenna Gutnick & Potter, Trustee v. Zoning Hearing Board of the Borough of West Mifflin v. Borough of West Mifflin and Second Baptist Church of Homestead. Appeal of Borough of West Mifflin.
• Court: Pennsylvania Commonwealth Court

831 A.2d 756

NOAH'S ARK CHRISTIAN CHILD CARE CENTER, INC. and Strassburger McKenna Gutnick & Potter, Trustee v. ZONING HEARING BOARD OF WEST MIFFLIN v. Borough of West Mifflin and Second Baptist Church of Homestead.

Appeal of Borough of West Mifflin.

Noah's Ark Christian Child Care Center, Inc. and Strassburger McKenna Gutnick & Potter, Trustee v. Zoning Hearing Board of the Borough of West Mifflin v. Borough of West Mifflin and Second Baptist Church of Homestead.

Appeal of Borough of West Mifflin.

Commonwealth Court of Pennsylvania.

Argued May 6, 2003.

Decided August 7, 2003.

Reargument Denied October 3, 2003.

Mike Adams and Mark J. Christman, Pittsburgh, for appellant.

Edwin J. Strassburger, Pittsburgh, for appellees.

BEFORE: SMITH-RIBNER, Judge, FRIEDMAN, Judge, KELLEY, Senior Judge.

Reargument En Banc Denied October 3, 2003.

SMITH-RIBNER, Judge.

The Borough of West Mifflin (Borough) appeals from an order of the Court of Common Pleas of Allegheny County that sustained the appeal of Noah's Ark Christian Child Care Center, Inc. (Noah's Ark) and Strassburger McKenna Gutnick & Potter, Trustee (Trustee) and reversed the decision of the Zoning Hearing Board of the Borough of West Mifflin. The Zoning Hearing Board, after a hearing, issued a decision and order affirming the denial by the Borough's Zoning Officer of the application of Noah's Ark for a certificate of occupancy to continue operating a day care facility after the property in which it was conducted would be sold to Second Baptist Church of Homestead (Second Baptist).¹

I

On a six-acre property at 612 Coal Road, West Mifflin is a two-story masonry building completed in 1998 for Grace Christian Ministries, Inc. (Grace Christian). Grace Christian operated a church in the structure pursuant to a conditional use approval granted by the Borough Council, and it operated a day care center in a portion of the building since June 1998. The Court of Common Pleas entered an order on November 20, 2002 stating that the day care center operation is held in a constructive trust managed by the Trustee; the order was later amended to include authority over the real estate. The Trustee proposes to sell the day care operation to Noah's Ark and the subject property to Second Baptist.² Second Baptist is located in Homestead, and it does not plan to relocate its church to the subject property. Second Baptist operates a day care center at its church in Homestead, which is not affiliated with Grace Christian or Noah's Ark. Noah's Ark is a for-profit commercial business founded by Paul T. Cassidy to purchase the day care operation. Cassidy is the assistant director of the current operation.

Noah's Ark applied for an occupancy permit to continue the day care operation, which the Zoning Officer denied on the ground that the proposed use was a business use that was not permitted in the R-2 medium density residential district. Noah's Ark appealed, and Second Baptist intervened. After a hearing on May 6, 2002, the Zoning Hearing Board issued a written decision on June 20, 2002 affirming the denial. The board found that church services have not taken place on the property since at least November 2001 and that the principal use of the property is and would continue to be as a commercial day care center. On the question of accessory use, the Zoning Hearing Board noted that Section 303 of the Borough's Zoning Ordinance permits "accessory uses, buildings and structures customarily incident to" a permitted principal use. Although "principal use" is not defined, Section 202 defines "accessory use" as "a use conducted on the same lot as a principal use to which it is related; which is clearly incidental to and customarily found in connection with a particular principal use." The board did not credit the claim that day care centers are customarily found in association with churches, and it also rejected a claim of vested right to continue to use the premises for day care and denied the alternative request for a variance.

The trial court took no additional evidence on appeal by Noah's Ark and the Trustee. The court agreed that substantial evidence was produced to support a conclusion that the church activity would continue, quoting testimony of Tom Earhart on behalf of Second Baptist that not only would there be some type of formal service, but there would be weekly or daily scheduled events taking place in the building to further the community purposes of Second Baptist. The court stated that the zoning ordinance does not define "church" or "church use" or "church purpose," and it referred to the principle that ambiguous or undefined terms in an ordinance that restrict a permitted use should be construed broadly so as to give the landowner the benefit of the least restrictive use. Appeal of Shirk, 114 Pa.Cmwlth. 493, 539 A.2d 48 (1988). Noting that accessory uses are permitted as of right under the zoning ordinance, the court concluded that it is obvious that a day care center is an accessory use of a church. In addition, the board ignored testimony that the Christian focus of Noah's Ark was considered to be part of Second Baptist's ministry. Further, the difference between for-profit and not-for-profit corporate structure was not relevant and should not have been considered by the board. Concluding that the use was permitted as an accessory use, the trial court reversed the board.³

II

The Borough first asserts that the trial court misapplied the standard of review. It notes that in zoning cases determinations as to the credibility of witnesses and the weight to be afforded evidence are solely for the zoning hearing board as fact finder. Shamah v. Hellam Township Zoning Hearing Board, 167 Pa.Cmwlth. 610, 648 A.2d 1299 (1994). Section 1005-A of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A, provides that if the record includes findings of fact made by the governing body or zoning hearing board and the court does not take additional evidence, the findings shall not be disturbed if supported by substantial evidence. A reviewing court may not substitute its judgment for that of the local agency unless the board abused its discretion, Nascone v. Ross Township Zoning Hearing Board, 81 Pa.Cmwlth. 482, 473 A.2d 1141 (1984), which a board does only when its findings are not supported by substantial evidence. Valley View Civic Ass'n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

In closely related arguments the Borough contends that the Zoning Hearing Board's determinations that the proposed principal use of the property is for a day care center and that it is not an accessory use are factual determinations that are supported by substantial evidence. Under Section 303 of the Zoning Ordinance a commercial business is not permitted as of right in an R-2 district; however, a church is permitted as a conditional use, and under Section 202 an accessory use is permitted on the same lot as a principal use if it is "clearly incidental to and customarily found in connection with a particular principal use." Therefore, for an occupancy permit to be issued, the Board must determine that the principal use of the property is as a church and that the day care center is clearly incidental to church use and is customarily found in connection with such use.

The proposed lease between Noah's Ark and Second Baptist was not submitted as an exhibit, but a portion of it was read into the record.⁴ The Borough argues that the lease makes no provision for Second Baptist ever to have use of the first floor of the building and that it provides for exclusive use by the tenant of 2700 of the 4000 square feet of the second floor twelve and one-half hours per day Monday through Friday, and that this fact alone supports the Zoning Hearing Board's findings. Further it relies on the fact that Second Baptist did not plan to move its church from Homestead to support the finding that the day care operation was the principal use.

Noah's Ark and the Trustee respond that substantial and uncontradicted evidence exists to support a determination that the church use would remain the principal use. Earhart testified that Second Baptist intended to bring its significant outreach programs to the community, referring to programs such as Teens for Christ and Mom's Fellowship. He stressed that church activities include more than traditional worship services, and he stated that there would be some type of formal service and also weekly or daily scheduled events on behalf of Second Baptist. They point out that in Church of the Saviour v. Zoning Hearing Board of Tredyffrin Township, 130 Pa.Cmwlth. 542, 568 A.2d 1336 (1989), this Court affirmed a trial court's reversal of a zoning hearing board's order denying a church's application to expand its special use permit to include professional counseling as well as pastoral counseling. Where the ordinance did not provide an objective definition of "church use," the Court disapproved the board's narrow, subjective interpretation of the correct parameters of religious practice and expression. In Unitarian Universalist Church of Central Nassau v. Shorten, 63 Misc.2d 978, 314 N.Y.S.2d 66 (N.Y.Sup.Ct.1970), the court adopted scholarly opinions that religious use is broadly extended to conduct with a religious purpose and that the concept of what constitutes a church has changed from a place of worship alone to a facility used during the entire week for various parochial and community functions and held that a day care operation was within the ambit of religious use.

As for the time devoted to church uses, Earhart consistently stated that outside the tenant's lease hours, the church will have the use of the entire building and that the church is a twenty-four hour operation. No one testified that Noah's Ark would have use of any of the building...