DocketNumber: Appeal, No. 1808 C.D. 1985
Citation Numbers: 100 Pa. Commw. 193, 514 A.2d 302
Judges: Barry, Crumlish, Crumlisi, Rogers
Filed Date: 8/29/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
This appeal results from an order of the Montgomery County Court of Common Pleas which affirmed the decision of the Springfield Township Zoning Hearing Board (Board) denying the Petition for Special Exception sought by the appellant, Leandro Angelone (appellant).
Appellant, a funeral director, filed the petition seeking to use his “residence, and a proposed single story addition thereto, as a professional office, for the conducting of funeral viewings.” The petition further averred that “[t]here will be no embalming done on the premises^] nor will there be a casket showroom on the premises.” After a hearing was held the Board denied the petition. The basis for that decision was that the proposed use did not constitute the operation of a “professional office,” a use permitted by special exception in the “B Residential” district in which the property was located. The trial court affirmed and appellant then pursued the present appeal.
Our review is, of course, limited to a determination of whether the Board committed either an abuse of dis
Section 114-14E of the Springfield Township Zoning Code provides as follows:
A professional office or home occupation shall be a permitted accessory use when authorized by special exception. ... A professional office shall be understood to include the office or studio of a doctor for the treatment of humans, dentist, teacher, artist, architect, musician, lawyer, magistrate or practitioner of similar character.
Id. Construing this section, the Board concluded that “the conducting] of a funeral home with or without embalming is not a professional activity” within the meaning of the ordinance. Board Decision at 4. This conclusion, in turn, was reached on the pivotal grounds that “undertaking and embalming” establishments were specifically provided for as permitted uses in the B-l Business District.
We discern no error in this reasoning. In Bonasi v. Haverford Township Board of Adjustment, 382 Pa. 307, 115 A.2d 225 (1955), a property owner sought to have a beauty shop approved as an “accessory professional use,” a category of land use permitted in the district in which the involved property was located. The Supreme Court, in affirming the townships rejection of the proposed use, employed reasoning we believe to be controlling in the present case:
A reading of the Zoning Ordinance makes it clear that the term ‘professional office,’ as used*196 in relation to ‘B’ Residence Districts, was not intended to include a beauty shop. The Ordinance [in its Business District provisions] provides for ‘Personal service shop, tailor, barber, beauty, shoe repair, dress making shop and other personal service shops or store/ .... Since the use of a beauty shop ... is specifically permitted as a business use, it is inconceivable that a similar use was intended as an accessory professional use in a ‘B’ Residence District. It is plain that the Ordinance did not so intend.
382 Pa. at 311, 115 A.2d at 226 (emphasis in original). See also Crary Home v. Defrees, 16 Pa. Commonwealth Ct. 181, 185-87, 329 A.2d 874, 876-77 (1974). As this was precisely the Boards reasoning in the present case, we cannot say that any error of law was committed.
While we respect appellants desire to be regarded as a “funeral director” rather than an “undertaker,” we decline to assign any difference to the two terms for purposes of the involved zoning ordinance. Although the term “undertaker” may be archaic, the draftsmen of the statute must certainly be viewed to have considered the activities proposed by the appellant as belonging in the Business District, regardless of the title under which the involved occupation is placed. Nor, in our view, does the willingness to refrain from embalming somehow cause the desired activity to come within the term “professional office” for purposes of the involved ordinance. The “conducting of funeral viewings” is clearly the occupation of an “undertaker”—though that term may be of obsolete parlance—under the terms of the ordinance.
Affirmed.
Order
Now, August 29th, 1986, the order of the Montgomery County Court of Common Pleas, at No. 83-03427, dated May 29, 1985, is hereby affirmed.
Section 114-91(b), Springfield Township Zoning Code.
Indeed, in earlier litigation in which appellant sought a special exception involving the same property, this Court affirmed the trial courts denial of the petition on precisely these same grounds:
We believe that the lower court correctly concluded that, since undertaking and embalming establishments are specifically permitted in the lower business districts and are not specifically included in the higher residence district, a funeral home is excluded from the residence districts. . . . [W]e affirm the order appealed from on the basis of [the trial court opinion], reported at Appeal of Angelone, 106 Montg. 104 (1979).
Angelone v. Zoning Hearing Board of Springfield Township, 53 Pa. Commonwealth Ct. 639, 640, 419 A.2d 231, 231 (1980) (Angelone I)
The parties agree that Angelone I does not have res judicata effect with respect to the present dispute, because the use advanced in the case under consideration is slightly different. In the original petition, a full-service funeral home was sought as a special exception, whereas in the present case appellant proposes neither embalming nor the maintenance of a casket showroom as part of the use.