Agenda - Planning Commission - 03/06/2008

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~ 1 !: JanuarY 10, 20081 Volume 21 No.1 Four of the club's courts were open-air clay courts located pri- marily in the part of the property zoned residential. The courts were nonconforming uses because of setback, coverage, and park- ing requirements. The club filed an application for a permit to build a permanent structure enclosing two of the outdoor courts and to remove one of the existing courts. The club asserted that "no zoning relief [was] required to en- close the two tennis courts as proposed." Alternatively, the club requested variances to enclose the courts as a natural expansion of a nonconforming use. Both requests were denied by the zon- ing officer. The club appealed to the zoning hearing board and a hearing was held on the matter. Mer a hearing, the board affirmed the decision of the zoning officer. The board found that the proposed project was "not an extension of the tennis court structures, but in fact was a new structure of an entirely different kind than the ten- nis courts." As such, the board ruled that the new structure would have to comply with setback requirements-which it could only do with a variance. However, the board noted that the club had with- drawn its request for a variance. The club appealed. The trial court dismissed the appeal, agree- ing that the proposed enclosure was a new structure that would require a variance, which the club had not requested. Additionally, the trial court found that the enclosure's encroachment into the setback and "massive size" posed a significant potential adverse ef- fect. Based on a "common sense reading of the Narberth Zoning Code" and the importance of maintaining setbacks, the trial court found in the borough's favor. The club appealed. DECISION: Affirmed. On appeal, the club argued that the definition of "structure" that was adopted by the borough included within man-made clay tennis courts supported by a brick foundation and enclosed by a chain link fence. As such, the tennis courts were structures-albeit non- conforming ones. Importantly, this nonconforming status should have allowed the setback and coverage deviations to continue to apply to the proposed project. The club also argued that a variance was not required to enclose a nonconforming tennis court structure when the enclosure will not increase any nonconformities. The appeals court agreed that the clay tennis courts were a structure. Accordingly, they did establish existing nonconforming setbacks and coverages. However, the law provided that generally, a nonconforming commercial or industrial use was permitted to 11 '27