Smith v. ZONING BD. OF HUNTINGDON

• Court: Commonwealth Court of Pennsylvania
• Writing for the Court: KELLEY.
• Citation: 734 A.2d 55
• Parties: Ethan W. SMITH, Margaret S. Smith, Paul E. Everetts and Hazel Everetts, Appellants, v. ZONING HEARING BOARD OF HUNTINGDON BOROUGH.
• Decision Date: 08 July 1999

734 A.2d 55

Ethan W. SMITH, Margaret S. Smith, Paul E. Everetts and Hazel Everetts, Appellants,
v.
ZONING HEARING BOARD OF HUNTINGDON BOROUGH

Commonwealth Court of Pennsylvania.

Argued April 15, 1999.

Decided July 8, 1999.

734 A.2d 56

Ethan W. Smith, Huntingdon, for appellants

Charles B. Swigart, Huntingdon, for appellee.

Before SMITH, J., FRIEDMAN, J., and KELLEY, J.

KELLEY, Judge.

Ethan W. Smith, Margaret S. Smith, Paul E. Everetts and Hazel Everetts (collectively, the Neighbors) appeal from a final order of the Court of Common Pleas of Huntingdon County (trial court) which affirmed a decision of the Zoning Hearing Board of Huntingdon Borough (Board) granting a special exception to Clinton R. Corbin and Audrey N. Corbin (Applicants) and dismissing the Neighbors' appeal.

On April 2, 1998, the Applicants filed an application for a special exception under the Huntingdon Borough Zoning Ordinance (Ordinance)¹ to operate an automobile repair shop on their property. The property, a former fire hall, is located in the R-U Residential Urban District (R-U District) under the Ordinance. Public hearings on the application were held before the Board on April 27, 1998 and May 4, 1998, wherein the Neighbors objected to the special exception.

Based upon the evidence presented, the Board made the following findings of fact. The Board found that although the proposed use did not fall specifically within the categories of permitted uses or conditional uses in the R-U District, it was also not prohibited by the Ordinance. The Board found that the proposed use was a "use not provided for" controlled by Section

734 A.2d 57

211-45 of the Ordinance which provides that such a "use may be permitted if it is similar and compatible with permitted uses in the district and in no way is in conflict with the general purpose and intent of the chapter." The Board found that located in the immediate vicinity of the subject premises are numerous other commercial or similar uses to that requested by the Applicants, including a Sheetz convenience store, a bank, a pizza shop, and an automobile repair business. The Board also found that the Applicants have operated an automotive repair business for a number of years in the immediate vicinity of the proposed new location. By placing certain conditions upon the approval, the Board found that the integrity of the neighborhood could be maintained while permitting the relocation of an existing commercial enterprise. On the basis of these findings, the Board approved the Applicants' request for special exception

On June 9, 1998, the Neighbors appealed the Board's decision to the trial court. The trial court reviewed the action of the Board without taking additional evidence. By order dated October 29, 1998, the trial court dismissed the Neighbors' appeal and confirmed the action of the Board. The Neighbors now appeal to this Court.²

The Neighbors have presented the following issues for our review:

1. Whether a zoning hearing board commits an error of law or an abuse of discretion in approving a request for a special exception, pursuant to a provision of a zoning ordinance which provides for the approval of a proposed use when the use is similar and compatible with permitted uses in the district, when the zoning hearing board finds that the proposed use is similar only to conditional and non-conforming uses in the district.

2. Whether a zoning hearing board commits an error of law, abuses its discretion, or makes a finding not supported by substantial evidence in the record, by granting a special exception when the applicants for the special exception failed to provide plans, testimony or other evidence that demonstrates that the proposed use conforms with the criteria for granting a special exception as set forth in the zoning ordinance.

First, the Neighbors contend that the Board committed an error of law or an abuse of discretion in approving the Applicants' request for a special exception pursuant to Section 211-45 of the Ordinance which provides for the approval of a proposed use only when the use is similar and compatible with permitted uses in the district, when the proposed use was only similar and compatible with the conditional and non-conforming uses in the R-U District. We disagree.

We begin by stating that a zoning hearing board is the entity charged with the interpretation and application of the zoning ordinance. It is well settled that a zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference from a reviewing court. Borough of Milton v. Densberger, 719 A.2d 829 (Pa.Cmwlth. 1998). See Johnston v. Upper Macungie Township, 162 Pa.Cmwlth. 170, 638 A.2d 408 (1994). This principle is also codified in Section 1921(c)(8) of the Statutory Construction Act of 1972, 1 Pa.C.S.

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§ 1921(c)(8).³ The basis for the judicial deference is the knowledge and expertise that a zoning hearing board possesses to interpret the ordinance that it is charged with administering. Willits Woods Associates v. Zoning Board of Adjustment of City of Philadelphia, 138 Pa.Cmwlth. 62, 587 A.2d 827 (1991)

Section 211-45 of the Ordinance provides that "[w]henever in any district ... a use is neither specifically permitted or denied and an application is made by a property owner to the Zoning Officer for such use, the Zoning Officer shall refer the application to the Zoning Hearing Board, which shall have the authority to permit the use or deny the use." Section...