Opinion

Noah's Ark Christian Child Care Center, Inc. v. Zoning Hearing Board

  • 831 A.2d 756
  • 2003 Pa. Commw. LEXIS 543
Court
Commonwealth Court of Pennsylvania
Filed
Aug 7, 2003
Status
Published
Author
Friedman
On the bench
Smith-Ribner, Friedman, Kelley
Cited by
2 cases
Authority
More cited than 10.1%

Reversed on other grounds by Noah's Ark Christian Child Care Center, Inc. v. Zoning Hearing Boardzoning Hearing Board, 584 Pa. 9 (2005)

The opinion

*764 DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority concludes, based solely on the uncontra-dicted testimony of Thomas B. Earhart, Esquire (Earhart), counsel for Second Baptist Church of Homestead (Second Baptist), that the Zoning Hearing Board (ZHB) of the Borough of West Mifflin (Borough) erred in finding that the principal use of the property at 612 Coal Road (Subject Property) is and will continue to be a commercial day care center. (Majority op. at 7; ZHB’s Findings of Fact, Nos. 26, 36.) I cannot agree.

The ZHB specifically found that “Second Baptist failed to submit credible evidence regarding any specific future use of the Subject Property.” (ZHB’s Findings of Fact, No. 31) (emphasis added). Thus, the ZHB rejected the uncontradicted testimony of Earhart pertaining to Second Baptist’s use of the Subject Property for church-related activities. Determinations as to the credibility of witnesses are matters left solely to the ZHB in the performance of its fact finding role. Shamah v. Hellam Township Zoning Hearing Board, 167 Pa.Cmwlth. 610 , 648 A.2d 1299 (1994). Absent any credible evidence relating to Second Baptist’s use of the Subject Property for church-related activities, the only possible principal use the ZHB could find for the Subject Property was as a commercial day care center. 1

Accordingly, unlike the majority, I would reverse.

. Without credible evidence to support a finding that Second Baptist will use the Subject Property as a church, it is not necessary to address whether a day care center constitutes an accessory use to a church.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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