Agenda - Planning Commission - 12/07/2017

Home

Zoning Bulletin October 25, 2017 I Volume 11 I Issue 20 residential dwellings, uses accessory to such dwellings, and passive recreation. The DiMattias appealed the Notice of Violation to the Township's Zoning Hearing Board ("ZHB"). The DiMattias argued that their race car activities were a permitted accessory use. After hearings on the matter, the ZHB concluded that the DiMattias' use of the Property for "the preparation of race cars for races and the rebuilding, repair, maintenance and transport of race cars were not sub- ordinate to or customary or incidental to the residential use of the Prop- erty and [therefore] were not permitted as an accessory use in an R-1 District." The DiMattias appealed to court. On appeal, the DiMattias argued that their race car activities were "automatically a lawful accessory use" because, under the Zoning Ordinance, "private garages" were listed as an accessory use for residential properties. They also argued that their race car activities constituted a permitted accessory use because the activities were a "hobby, rather than a commercial use of the Property." DECISION: Judgment of Court of Common Pleas affirmed. The Commonwealth Court of Pennsylvania held that because the DiMattias' race car work was a regular, daily activity "more analogous to a vehicle repair shop in its intensity than to a homeowner working on his own vehicle in his garage or the mere storage of vehicles," the race car activities did not meet the requirements of the Zoning Ordinance that an accessory use be "clearly incidental to and customarily found in connection with" the primary residential use of the Property. In so holding, the court looked to the Zoning Ordinance's definition of "accessory use," which included "a structure or use" that is: "clearly incidental to and customarily found in connection with a principal build- ing or use;" "subordinate to and serves a principal building or a principal use;" and "[c]ontributes to the comfort, convenience, or necessity of oc- cupants . . . in the principal building or principal use served." The court concluded that the DiMattias' race car activities did not satisfy those requirements for an accessory use. The court noted that because the DiMattias did not reside on the Property, the DiMattias' building and maintenance of race cars could not satisfy the accessory use requirements that the use: "be subordinate to or serve the principal use (as a residence);" or "[c]ontributes to the comfort, convenience, or necessity of occupants" of the residence. In any case, the court said that even if the DiMattias resided on the Property, their race car activities "would not constitute a lawful accessory use under the Zoning Ordi- nance" because they were not "clearly incidental to or customarily found in connection with" residential properties, since the activities were "extensive and pervasive," with daily work for hours at a time. Addressing the DiMattias' arguments directly, the court rejected © 2017 Thomson Reuters 9