Citation:

DiMattia v. Zoning Hearing Bd., 168 A.3d 393 (Pa. Commw. Ct. 2017)

Summary:
To determine whether a use is considered to be “customarily found” and “incidental” to the permitted use, it is proper to consider “both the type and intensity of the use and whether uses of that type and intensity are akin to uses that are customarily found or would reasonably be expected with that primary use in the area where the property is located.” A use cannot be subordinate to a residential use if the use occurs on a property where the persons engaging in it do not reside. Similarly, a use cannot contribute to the comfort, convenience, or necessity of the occupants where the use does not benefit occupants, but rather benefits other persons engaging in the use.
Case Details:

Landowners own a property located in a low density residential zoning district (Property). The Property contained a single-family home and carriage house. Landowners stated to the Township that they intended to live in the single-family home when they applied for and received a permit to build a pole barn garage on the Property. Landowners did not live in the single-family home; rather they rented the home, but not the outbuildings, to tenants. The pole barn garage was used as a vehicle and race car servicing, repairing, and parking area by Landowners. After complaints from neighbors, the Township Code Enforcement Officer (Officer) issued a notice of violation (First Notice) to Landowners demanding they cease storing trailers and unregistered vehicles on the Property. Landowners removed the vehicles from the Property in response to the First Notice, so the Township withdrew it. Neighbors then complained that Landowners were servicing vehicles and race cars on the Property. The Officer issued another notice of violation (Second Notice) directing Landowners to stop such activities. Landowners appealed the Second Notice. The Zoning Hearing Board (ZHB) denied Landowners appeal. Landowners appealed to the trial court, which affirmed the ZHB’s decision. Landowners thereafter appealed to the Commonwealth Court.

On appeal to the Commonwealth Court, Landowners argued their activities were permitted by the zoning ordinance as an accessory use. Under the zoning ordinance, an accessory use is, among other things, one that (1)  “is incidental to and customarily found connected to the principal building or use”; (2) “is subordinate to and serves a principal building or a principal use”; (3) “contributes to the comfort, convenience, or necessity of occupants . . . in the principal building or principal use.”  The activity at issue did not meet these definitions. Whether a use is “customarily found” and “incidental” to the permitted use depends on “both the type and intensity of the use and whether uses of that type and intensity are akin to uses that are customarily found or would reasonably be expected with that primary use in the area where the property is located.” The race car building, repair, maintenance and transport use was extensive and would occur every day for hours at a time. Daily vehicular maintenance or repair work is not an activity that is customarily or reasonably expected in a residential area. Further, the activities were not subordinate to the single-family home occupied by tenants and did not serve that principal building’s use. In addition, the activities were not a usage that “contribute[d] to the comfort, convenience, or necessity of the occupants” because the Landowners did not reside on the Property and the tenants, who did reside there, did not benefit from the use.

Date of Decision: 8/9/17

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