Risker v. Smith Twp. Zoning Hearing Board,
886 A.2d 727 (Pa. Cmwlth. 2005), app. denied.
A private grass landing strip is not a subordinate and incidental accessory use to a single-family residential use.
Landowner requested a building and zoning permit to build a private grass landing strip on a portion of his 45-acre property. The township supervisors denied the application because the proposed landing strip was not an authorized use in the underlying zones and, because the proposed use was not one that is “customarily found” with residential uses, could not qualify as an accessory use. Landowner appealed to the zoning hearing board, which affirmed. In addition to finding that the use could not be an accessory use because it was not a customary use, the zoning hearing board concluded that the use was not an accessory use because the use was not incidental to, related to, or subordinate to the single-family use. Landowners appealed.
The court of common pleas reversed, stating that the zoning hearing board erred by finding that a landing strip had to be a customary use to be an accessory use; here, the court opined, the zoning ordinance did not require that a use be customary to qualify as an accessory use.
On appeal by the Township, the Commonwealth Court reversed, reinstating the decision of the ZHB (denying the permit). First, the Court noted that ordinarily ZHBs are entitled to deference when interpreting their own ordinance. This is especially true where, as here, the ordinance is unambiguous. In this case, the Zoning Ordinance required that a use be “subordinate . . . and clearly incidental to a single-family dwelling” to qualify as an accessory use. The Court found this language to be unambiguous. Although the ZHB partially and improperly premised its conclusion on the finding that the landing strip did not represent a customary accessory use, the Commonwealth Court upheld the ZHB’s decision because of the ZHB’s concurrent findings that the proposed landing strip was not subordinate nor incidental to the single-family use within the meaning of its Ordinance. The landing strip was not a subordinate use because the physical size of the proposed use was greater in size than the principal use and was not incidental because the impact of the use would have more than a minor consequence on the single-family residential zone.
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