Phila. Suburban Dev. Corp. v. Scranton Zoning Hearing Bd., 41 A.3d 630 (Pa. Commw. Ct. 2012).
Halfway house not an accessory use to offices for the Board of Probation and Parole.
Applicant obtained zoning approval to house offices for the Pennsylvania Board of Probation and Parole in the basement level of its property. It then sought approval for a “community correction center,” or “criminal halfway house” (as designated by the Zoning Ordinance), as an accessory use on the first floor. The application for a variance or special exception for the accessory use was denied and Applicant appealed.
On appeal, the Commonwealth Court restated its interpretation of “accessory uses”:
Whether a proposed use is an accessory use “is a question of law to be determined based on the underlying facts.” An accessory use must be both subordinate and customarily incidental, i.e., secondary to the permitted main use of a premises and usually found with the principal use. A use cannot be considered accessory when it will actually be the principal use of the building.
Under the facts of the case, the Commonwealth Court determined that the community correction center would dramatically change the use of the property and that it was not subordinate to the office use. Consequently, the Commonwealth Court did not need to determine whether such a use was customarily incidental to the correction offices. Because the use was a principal use in and of itself, it could not be accessory in this instance.
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