Agenda - Planning Commission - 03/02/2017

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Zoning Bulletin January 25, 2017 I Volume 11 I Issue 2 to its "plain meaning," resolving any doubt "in favor of the landowner and the least restrictive use of the land," as required by Pennsylvania law. The court found that the dictionary defined a "funeral home" as "an establishment with facilities for the preparation of the dead for burial or cremation, for the view- ing of the body, and for funerals." Similarly, although it did not define a fu- neral home, Pennsylvania's Funeral Director Law (63 P.S. § 479.2(6)) defined a "funeral establishment" as "every place or premise approved by the State Board of Funeral Directors wherein a licensed funeral director conducts the professional practice of funeral directing including the preparation, care and funeral services for the human dead." Based on those definitions of a funeral home and a funeral establishment, the court found it "apparent" that River's Edge's use of the property would constitute a funeral home. River's Edge's use of the property would, found the court: provide traditional funerals which would include a service, a viewing, and transporting of the body to a cemetery; and meet the elements necessary to constitute a licensed funeral home in Pennsylvania. Looking at the evi- dence, the court also concluded that the funeral home (and not the crematory) would be the principal use on the property based on the fact that the total area dedicated to the crematory was only 12% of the total building area. The remaining portion of the building space, found the court, would be dedicated to funeral home related services such as a room for viewing, a morgue, a room for embalming, a chapel, and a garage to accommodate the vehicles that would be transporting bodies. Regarding the Borough's argument that the Board's determination was proper because the property's location and the building's appearance made it unsuitable for a funeral home, the appellate court disagreed. The court noted that the property's location, in the LI Zoning District, was where the Borough determined that a funeral home should be located (since it was permitted in such a zoning district). Similarly, the court found "no authority in the [o]rdinance or Pennsylvania law indicating that a building's appearance is a sufficient basis to deny a use -by -right or is even a valid consideration when determining whether a property's principal use constitutes a funeral home." Instead, the court again emphasized the minimal size of the crematory in the building as evidence that it would be the accessory, and not the principal use, as well as the fact that the River's Edge's proposal met the requirements to be a licensed funeral home in Pennsylvania. See also: H.E. Rohrer, Inc. v. Zoning Hearing Bd. of Jackson Tp., 808 A.2d 1014 (Pa. Cornrow. Ct. 2002). See also: Galzerno v. Zoning Hearing Bd. of Tullytown Borough, 92 A.3d 891 (Pa. Cornrow. Ct. 2014). Case Note: In its decision, the court addressed the Board's assertion that a 2011 application for a crematory use at the same property indicated that River's Edge's application for a fit- neral home was a "pretext to operate a crematory." The court rejected the Board's conclusion, noting that the 2011 applicant was: filed by a different applicant, for a dif- ferent purpose, and was substantially different than River's Edge's application. More- ©2017 Thomson Reuters 11