Thomason v. Zoning Hearing Bd. of Radnor Twp., 26 A.3d 562 (Pa. Commw. Ct. 2011).
Zoning ordinance may not exclude bed and breakfast use from the entire municipality.
Applicants challenged the validity of the Township’s Zoning Ordinance arguing that it excluded bed and breakfasts from the Township. Applicants showed the use of “bed and breakfast” appeared only once in the Zoning Ordinance, under prohibited home occupations. “Home occupation” was an accessory use permitted in all of the Township’s residential districts. As a result, on its face, the Zoning Ordinance prohibited the use of bed and breakfast in every zoning district where a residential home might be converted into a bed and breakfast. Once the Applicants proved the Zoning Ordinance excluded their proposed bed and breakfast use on its face, the burden shifted to the Township to establish a substantial relationship between the exclusion and an identified, protected public interest. It was undisputed that the Township offered no evidence that the Zoning Ordinance’s exclusion of bed and breakfasts was substantially related to the community’s health, safety and general welfare. Consequently, that portion of the Zoning Ordinance was ruled unconstitutional.
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