Thomas v. Zoning Hearing Bd. of Benner Tp.

• Citation: 121 Pa.Cmwlth. 393,550 A.2d 1045
• Parties: John L. THOMAS and Miriam Thomas v. ZONING HEARING BOARD OF BENNER TOWNSHIP and the Township of Benner. Appeal of the BOARD OF SUPERVISORS OF BENNER TOWNSHIP, Appellant.
• Decision Date: 01 December 1988
• Court: Commonwealth Court of Pennsylvania

Page 1045

550 A.2d 1045

121 Pa.Cmwlth. 393

John L. THOMAS and Miriam Thomas v. ZONING HEARING BOARD OF BENNER TOWNSHIP and the Township of Benner Appeal of the BOARD OF SUPERVISORS OF BENNER TOWNSHIP, Appellant.

Commonwealth Court of Pennsylvania.

Argued Nov. 3, 1988.

Decided Dec. 1, 1988.

Benjamin Novak, Novak, Stover & McCarty, Solicitor, State College, for appellant.

Robert B. Mitinger, Donald M. Kresen, State College, Charles Schneider, Bellefonte, for appellee.

Before BARRY, COLINS and McGINLEY, JJ.

COLINS, Judge.

The Board of Supervisors of Benner Township (Board) appeals from an order of the Court of Common Pleas of Centre County which reversed the decision of the Zoning Hearing Board of Benner Township (ZHB) and ordered that Dr. John L. Thomas and Miriam Thomas (appellees) be permitted to erect a stable for the keeping of horses. We affirm.

Appellees are a veterinarian and his wife who recently built a home on a 5.08 acre lot contained in Walnut Grove Estates, a development located in a Low-Density Residential (LDR) district in Benner Township. Appellees applied to the zoning officer for a permit to construct a stable for the keeping of horses for their own personal recreational use.¹ This application was denied and an appeal was taken to the ZHB. Hearings were conducted and after due consideration of the evidence presented, the ZHB issued its decision denying the appeal. On further appeal, the trial court took no additional evidence² and reversed the decision of the ZHB. The Board filed a timely appeal with this court.

The issue before the ZHB was whether a stable was an accessory building or the keeping of horses an accessory use to the permitted uses in a LDR district, pursuant to Section 503 of the Benner Township Zoning Ordinance (Ordinance).³ Under Section 503 of the Ordinance, the following uses (as well as other uses not relevant here) are permitted as of right in LDR districts:

1. Single-family detached dwellings, single-family semi-detached dwellings, and two-family detached dwellings.

* * *

3. Accessory buildings and uses customarily incidental to the above uses....

Under Section 202 of the Ordinance, "accessory building or use" is defined as:

Accessory Building or Use: A subordinate building or use or a portion of the main building on a lot, the use of which is customarily incidental to that of the main or principal building.

In order to establish the right to an accessory use, a landowner must prove that the use sought is secondary to the principal use and that it is customarily incidental to the principal use. Franchi v. Zoning Hearing Board of the Borough of New Brighton, 117 Pa.Commonwealth Ct. 236, 543 A.2d 239 (1988). The appellees' dwelling is clearly the predominant use of the subject lot. Therefore, the ZHB had to determine whether the construction of a stable and the keeping of horses were uses "customarily incidental" to a residence.

In doing so, the ZHB relied upon the case of Von Gerbig v. Marshall, 36 D. & C.2d 133 (1964), which directed that "the true nature of the community" must be considered in interpreting what constitutes an accessory use. In Von Gerbig, a complaint was filed by a party seeking to enjoin the adjoining property owners from proceeding with the construction of a stable for the keeping of a horse. The trial court found:

The general area in which these properties are located is rural and agricultural in character. Dwelling houses are spaced at some distances from each other and the intervening open spaces, some of which have been enclosed by fences as fields, are devoted to the raising of crops or the pasturing or grazing of livestock. There are no designated streets as distinguished from roads in the area; neither is the area serviced by any common water supply or sewage disposal system.

Id. at 139. The trial court went on to say:

To say that the construction and use of a one-horse stable in an area in which this stable is to be located is not accessory to the dwelling use of a single house would require that we close our eyes to the true nature of the community itself. We venture that many houses similarly situated in the same locality keep horses for the convenience of the families who live in them.

Id. at 142.

In applying the test set forth in Von Gerbig, the ZHB began its analysis by stating: "[I]n this case we take 'true nature' to mean that which is actually done in a community. We take 'community' to mean Walnut Grove Estates." Herein lies the error of the ZHB. It erroneously limited its examination to the bounds of the development. The community to be considered must include the surrounding area.⁴ The ZHB found that this development is bounded on the north and west by land owned by The Pennsylvania State University and used for airport and agricultural purposes. It further found that this development is bound on the east by a Rural Residential District which permits the keeping of horses as of right. The ZHB concluded that because no horses were kept on any lot within the development, that the true nature of the community in Walnut Grove Estates was such that a stable would not be an accessory building nor the keeping of horses an accessory use to a residence therein.

Our examination of the community, which includes Walnut Grove Estates and the surrounding area, leads us to a conclusion that the ZHB erred as a matter of law. It is significant to note that the ZHB's description of Walnut Grove Estates paints a picture of a typical residential development where homes are situated side by side in close proximity to one another. It emphasizes that the lots are an average size of 2.5 acres in size and the development is served by platted and dedicated streets. However, a thorough review of the record indicates that Walnut Grove Estates is not a typical residential development moving towards urbanization. The development is located approximately five miles from downtown State College and eight miles from Bellefonte. The surrounding land as well as that contained in the subdivision is rural in nature.

In his testimony, Edward Miller, one of the original developers of Walnut Grove Estates, characterized the community as being...