# Abernathy v. Zoning Hearing Board

> Commonwealth Court of Pennsylvania · August 30, 1988 · 119 Pa. Commw. 193

URL: https://www.frixlaw.com/law-library/cases/9750474

## Case

- **Full name:** Christopher M. Abernathy v. the Zoning Hearing Board of Hampton Township and Hampton Township. Hampton Township, Appellant
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** August 30, 1988
- **Citations:** 119 Pa. Commw. 193; 546 A.2d 1311; 1988 Pa. Commw. LEXIS 697
- **Precedential status:** Published
- **Opinion:** Concurrence by Craig
- **Judges:** Craig, Doyle, Palladino
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9750474

## Opinion text

Concurring Opinion
by Judge Craig:
The condition negating any residential use, in addition to the professional law office use, is, as this court *200 holds, not justified by traffic concerns allegedly having an impact upon the community’s health, safety and welfare; there is no substantial evidence which relates such concerns or impact to the existence of a garage apartment.
However, the township’s reliance upon Zoning Ordinance §10.140, as a basis for supporting that condition, would be justified if that section meant that there shall be no more than one principal use on each zoning lot (apart from planned developments).
Zoning ordinances commonly contain provisions which state that constraint: Each zoning lot may contain not more than one principal use, together with accessory uses related to it.
Here the referee understandably construed §10.140 to have that meaning. He read the provision that “not more than one structure to be occupied by a principal permitted use shall be constructed on a lot” by employing the usual mandatory sense of “shall”—rather than its futurity sense—to conclude that it meant that not more than one principal use may exist on any lot.
The problem is that the township drew that provision as referring to the principal use for which a structure “shall be constructed,” rather than to how a structure “shall be used,” thus creating an ambiguity in a context which, as here, involves only existing structures.
In accordance with the rule of interpretation that the courts should construe ambiguous zoning ordinance provisions (other than those which limit nonconforming uses) against the municipality and in favor of the freer use of land, this court must read §10.140 to be inapplicable in this case and therefore not available to support the condition attached to the special exception. Fidler v. Zoning Board of Adjustment, 408 Pa. 260 , 182 A.2d 692 (1962); Burgoon v. Zoning Hearing Board of Charlestown Township, 2 Pa. Commonwealth Ct. 238, 277 A.2d 837 (1971).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750474. Public record. Not legal advice.