Rappaport v. ZHB of Allentown, 687 A2d 29 (1996)
Interpretation of Uses Where Particular Use Not Identified in Zoning Ordinance. Guidelines For Interpretation of Uses.
Many land use appeals result from interpretations of applicability of zoning to undefined uses. The courts have created a number of principles to assist governing bodies, planning commissions and zoning hearing boards in making such interpretations. The courts generally support interpretations which would be least restrictive on the rights of an owner. This does not mean, however, that a use must be approved if it has only minimal similarities to uses specified in the ordinance.
In this case the Applicant wanted to use an undeveloped tract of land as a playground in connection with her childcare business located elsewhere. The Court had to determine whether such use “fit” within the ordinance definition of “public park or playground” or a “day care center.”
As to the claimed similarity of the proposed use to a “public playground” the Court noted that a distinction between public and private use of the same nature is not valid if it is intended only to regulate the “owner” not the “use.” Courts have consistently held that a use permitted for a non-profit must also be permitted for a “for-profit” entity. Otherwise the only distinction would be the nature of the “owner.”
Here the Court found that the essential distinction by use of the term “public” rather than “private” playground is that the former is “accessible to or could be shared by all members of the public” while a “private” playground is not so accessible. The Court thereby found a justifiable use-based distinction.
Appellant also argued that the proposed use fits within the definition of a “day care center.” The Court first focused on the ordinance which permitted “any premises” (emphasis added) in which day care is provided. The ordinance did not define “premises.”
The Court reflected on the following principles of interpretation:
1. Words must be given their “usual” and “ordinary” meaning.
2. When an ordinance is ambiguous it must be construed according to recognized rules of construction.
3. An ordinance should, when possible, be construed to give effect to all of its provisions.
4. Guidance as to “usual and ordinary” meanings can be gleaned from statutes, regulations or dictionaries.
Here the court found that as related to day care, the word “premises”, whether defined by dictionary or when taken in context with conditions imposed by other sections of the ordinance, a day care center contemplated a building…not just a playground. The court therefore overturned the zoning hearing board and found that the playground did not qualify as a public playground or day care center.
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