Agenda - Planning Commission - 04/01/1997

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Page 6- March 10, 1997 Z.B. Designating the house residential and the structure nonconforming commercial did not violate the zoning code. The code explicitly allowed structures, as well as entire lots, to be grandfathered, which indicated two different uses could exist on the same lot. The lower court should have made clear that storage facilities weren't the only possible uses for the structure. The code allowed, any use that wasn't more ~onco~forming than the current one; it said nothing about uses that were equal. Therefore, any use that was the same as or less nonconforming than an auto repair shop could operate in the structure. If the city wanted to exclude equally nonconforming uses, it should have written so in the code. The lower court didn't abuse its discretion in awarding attorney's fees. If the city had in fact "scared off" buyers by giving them false information about the property, then unusual circumstances .justified the award. Variance -- Restaurant owners seek variance from parking-space reqmrement Koutrakos v. Zoning Hearing Board of Newtow~ Township, 685 A.2d 639 (Pennsylvania) 1996 The Koutrakoses owned a restaurant in Newtown Township, Pa. The eight- seat restaurant shared 94 parking spaces with 19 other small businesses. The owners wanted to increase their seating to 40. Under the zoning ordinance, restaurants needed one parking space for every two seats, plus two spaces for each carry-out window. The owners would need 23 spaces. The owners applied to the Zoning Hearing Board for a special exception to expand the seating, and a variance from the parking requirements. At a hearing, board members said there already was a parking-space shortage, so the expansion would adversely affect off-street parking. Some members said they had personally observed gridlock situations in the lot. The owners presented evidence from a civil engineer's parking study, which showed that during peak restaurant hours the number of spaces that actually were available averaged higher than the required 23. So, despite the lot's seemingly inadequate spaces, the owners complied with the parking requirements. The board denied both the special exception and the variance, but did not make findings of fact. The owners appealed.' The court did not take additional evidence and, absent any findings from the board, made its own factual findings. Under the state Municipalities Planning Code, if there were no factual findings from the administrative agency (the board), or if the court took additional evidence, "the court shall make its own findings of fact based on the record ... as supplemented by the additional evidence, if any." The court found the owners could increase their seating to 40 without burdening the off-street parking, since the number of actual spaces available during peak hours was at least 23. The township appealed. It claimed the court should have taken additional