In this appeal out of Bucks County, the Commonwealth Court weighed in on whether a zoning hearing board (“ZHB”) could deny a permit for a permitted by-right use based on the ZHB’s determination that the requested use was not appropriate in the district, and was not the actual use for which the applicant intended to use the property.  In affirming the trial court’s reversal of the ZHB’s decision, the Commonwealth Court held that it was error for the ZHB to consider the appropriateness or proposed appearance of a permitted by-right use, and that evidence of a prior application for use that was not permitted, was irrelevant to the present application.

Vivid Autumn foliage is reflected in a still lake in the golden hour, with periwinkle sky. Image created at Nockamixon State Park in Quakertown, Bucks County, Pennsylvania. "Nockamixon" may mean "in the place or soft soil" in the Lenni Lenape language. DSLR image at low ISO captures magnificent fall color warmth in a horizontal format late in the day. No people. Copy space.

In 2013 River’s Edge filed an application for a use and occupancy permit to operate a funeral home with an accessory crematory in the Borough’s Light Industrial zoning district.  In the Borough’s LI district a funeral home was permitted as a principal use and a crematory as an accessory use; however, a crematory was not permitted as a principal use. The zoning officer denied the permit on the basis that it appeared the crematory would be the principal use, rather than the funeral home.  River’s Edge appealed this determination to the Borough’s Zoning Hearing Board (“ZHB”). After holding a hearing, the ZHB denied the application, stating the location and appearance of the building was not suitable for a funeral home use, and that the primary use would actually be a crematory, not a funeral home as stated in the application. The ZHB supported this conclusion by pointing to a prior application to operate a commercial crematory on the same property in 2011. The 2011 application had been submitted by the same principal as the River’s Edge application, but was made by a different corporate entity.  River’s Edge appealed to the Court of Common Pleas of Bucks County, which reversed and ordered the permit be issued. River’s Edge appealed.

On appeal, the Commonwealth Court affirmed the trial court’s determination.  Initially, it held that the ZHB’s consideration of the prior application for a commercial crematory was erroneous, as the ZHB had denied the admission of that application into evidence, and the application was not relevant to these proceedings as it had been filed by a different applicant for a different use.  Next, the Court found it was error for the ZHB to consider the propriety of the use on the property.  This, the Court concluded, was a determination to be made by the Borough’s governing body when it zoned the property, not the ZHB. Further, a building’s appearance was not a valid consideration or basis for denying a permitted by-right use. Thus the court concluded that the principal use of the property was to be a funeral home, not a commercial crematory, and that the ZHB had erred in denying the permit.

River’s Edge Funeral Chapel & Crematory, Inc. was represented by attorneys from Eastburn and Gray including Michael J. Savona, Michael E. Peters, and Zachary A. Sivertsen.

Click here to read: River’s Edge Funeral Chapel & Crematory, Inc. v. ZHB of Tullytown Borough, 22 CD 2016 (Pa. Commw. Ct. Nov. 16, 2016).

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Sivertsen_BLOGZac Sivertsen