“Moreover, funeral homes are generally understood as facilities that provide professional services directly to the families and loves ones of the deceased”
How later courts described this case
- “Moreover, funeral homes are generally understood as facilities that provide professional services directly to the families and loves ones of the deceased”
- consulting the Funeral Director Law when interpreting an undefined zoning ordinance term
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
Judge LEAVITT.
Respectfully, I dissent. Because the Tullytown Borough Zoning Ordinance does not define or even mention crematories, the Board and the trial court should have construed the Ordinance in Galzerano’s favor and against any implied restrictions on his use of his property. Accordingly, I would reverse.
As noted by the majority, a zoning hearing board’s interpretation of its own zoning ordinance is generally entitled to great weight and deference. City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa.Cmwlth.2006). However,
[i]t is fundamental that restrictions imposed by zoning ordinances are in derogation of the common law and must be strictly construed. Such restrictions must not be so construed as to fetter the use of the land by implication. The permissive widest use of the land is the rule and not the exception, unless specifically restrained in a valid and reasonable exercise of the police power.
Fidler v. Zoning Board of Adjustment of Upper Macungie Township, 408 Pa. 260 , 182 A.2d 692, 695 (1962) (citations omitted). Thus, zoning ordinances that are clear and free from any ambiguity are not open to interpretation, but ambiguous language is to be read in a property owner’s favor and against any implied extension of a restriction. Isaacs v. Wilkes-Barre City Zoning Hearing Board, 148 Pa.Cmwlth. 578 , 612 A.2d 559, 561 (1992). In interpreting zoning ordinances, this Court relies upon the common usage of the words and phrases contained therein and will construe that language in a sensible manner. Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d 265, 269 (Pa.Cmwlth.2008).
In the present case, the word “crematory” does not appear in the Ordinance. Funeral homes and mortuaries are permitted uses in the LI District, but the Ordinance does not define those terms. Under a commonly accepted definition, a “funeral home” is “an establishment with facilities for the preparation of the dead for burial or cremation, for viewing of the body, and for funerals.” Webster’s Third New International Dictionary 922 (2002).
Galzerano testified about the operations of the proposed crematory, which will in- *897 elude preparing bodies for cremation and then performing the cremation. He also testified that some funeral services would be held at the crematory. In light of the foregoing uncontested testimony, and construing the Ordinance in the least restrictive manner, I would hold that Galzerano’s proposed crematory is analogous to a “funeral home” because it will serve many of the same functions as a funeral home.
I disagree with the majority’s reliance upon Rabenold v. Zoning Hearing Board of the Borough of Palmerton, 777 A.2d 1257 (Pa.Cmwlth.2001). In that case, the landowner was permitted to operate a crematory as an accessory use to an existing funeral home, which had been allowed as a permitted “retail use” under the applicable zoning ordinance. Rabenold is inapposite because it involved a different zoning ordinance than the one at bar. The Court did not announce a statewide rule that a crematory can only be allowed where it is next to or part of a traditional funeral home. Nor did Rabenold establish that a crematory cannot be a principal use in Tullytown Borough. In so holding, the majority overlooks Galzerano’s uncontested testimony that funeral services will be conducted in the crematory. Such testimony was neither elicited nor necessary in Rabenold because the landowners in that case intended to operate their crematory in a physical addition to their existing funeral home.
Finally, the majority discusses, but does not overrule, the Board’s finding that the proposed crematory use “clearly falls within the definition of an incinerator.” Reproduced Record at 90a. I would hold that the Board erred in that regard. The Ordinance defines an “incinerator” as a facility “consist[ing] of ... furnaces” that is “designed to reduce municipal waste by combustion.” Ordinance § 185 — 19(J)(2). Although an incinerator and a crematory both contain a furnace, a crematory is not designed to dispose of municipal solid waste. The Board’s contrary, and unfortunate, finding fails to afford human remains the respect and dignity to which they are entitled and do receive from funeral homes. This leaves unanswered the question of whether a stand-alone crematory is allowed anywhere in the Borough.
For all of these reasons I would reverse the trial court’s order affirming the Board’s denial of Galzerano’s application for a use and occupancy certificate.