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IN THE COMMONWEALTH COURT OF PENNSYLVANIA William H. Agnew, Appellant v. Bushkill Township Zoning Hearing Board v. Eric Martyn BEFORE: : : : : : : : : : : :

No. 243 C.D. 2003 Argued: September 11, 2003

HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge

OPINION BY JUDGE LEAVITT

FILED: December 5, 2003

William H. Agnew (Appellant) appeals from an Order of the Court of Common Pleas of Northampton County (trial court) granting Appellant's neighbor, Eric Martyn (Landowner), a special exception to conduct a roofing business as a "home occupation" on a residential property in a Rural Agricultural District. In doing so, the trial court affirmed the Bushkill Township Zoning On February 8, 2002, Landowner, the owner of Nazareth Roofing, applied for a permit to operate his roofing business as a home occupation.1
Landowner has been operating his business from his residence without a permit. Reproduced Record 22a, 77a. (R.R. ___ ).
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Hearing Board (Board). We reverse the trial court.

Landowner's property consists of 4.44 acres in a Rural Agricultural District, and it includes a farmhouse built at the turn of the last century, in which Landowner and his wife reside, as well as two farm-type outbuildings.2 The Zoning Officer denied the application, and Landowner appealed to the Board. In his appeal, Landowner requested a special exception to operate his roofing business as a home occupation; an interpretation as to what qualifies as a commercial vehicle; and a determination as to what vehicles used in his business could be stored on his property. On April 8, 2002, the Board held a hearing. Appellant, who owns a seven-acre residential parcel adjacent to Landowner's property, appeared at the hearing. Appellant participated by protesting the requested special exception. Landowner testified that he uses an area ten feet by twelve feet in his home for his business office, and he stores equipment and materials used in his business in the outbuildings on the property. The roofing business employs three non-resident employees, and, on occasion, employs up to seven individuals. Landowner and his wife also work for the business. The roofing business uses several commercial vehicles, including a dump truck, a 350 Ford stake body truck, and a 250 Ford pickup truck. Landowner stores the two larger trucks at a location in the Borough of Nazareth. He uses the pickup truck as his personal vehicle, parking it at the residence. On May 13, 2002, the Board issued a written decision granting the special exception requested by Landowner to operate his roofing business as a

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The outbuildings consist of a 20' x 20' accessory structure, once used as a chicken coop, and a 20' x 30' barn. He intends to use 240 square feet of the floor area in the chicken coop and 450 square feet of floor area in the barn for his roofing business.

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home occupation. The Board determined that Landowner's stake body truck is a commercial vehicle and, therefore, cannot be parked on the property. Appellant appealed to the trial court. The trial court did not take any additional testimony, but it heard oral argument, after which it affirmed the Board on all issues. The trial court concluded that the Board properly granted Landowner's request for a special exception because he had satisfied all the requirements of the Bushkill Township Zoning Ordinance (Ordinance),3 for operating a home occupation. Further, the trial court held that Appellant failed to prove that Landowner's use of his property to operate a roofing business is detrimental to the community. On January 23, 2003, the trial court dismissed Appellant's appeal. Appellant then appealed to this Court.4 On appeal, Appellant contends that the trial court erred in affirming the Board in three different ways. First, Appellant contends that Landowner's roofing business does not meet the definition of a "home occupation" contained in Section 201 of the Ordinance.5 Second, Appellant asserts that Landowner failed to

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BUSHKILL TOWNSHIP, PA, ZONING ORDINANCE (1994). R.R. 186a-194a. This Court's scope of review in a zoning case where the trial court takes no additional evidence is limited to determining whether the Board committed an abuse of discretion or an error of law. Constantino v. Zoning Hearing Board of Borough of Forest Hills, 618 A.2d 1193, 1195 n.2 (Pa. Cmwlth. 1992). The Ordinance defines a home occupation as follows: Home Occupation. A routine, accessory and customary non-residential use conducted within or administered from a portion of a dwelling or its permitted accessory building that: A. meets the definition, standards and limitations of a "general home occupation" or a "light home occupation" within the following definitions and Article 19; B. only include [sic] uses that are clearly incidental and secondary to the principal residential use;

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carry his burden of proving that his roofing business satisfies the specific requirements in the Ordinance6 for operation of a home occupation. Finally, Appellant complains that the Board's written decision conflicts with its oral decision at the hearing, insisting that the oral decision should be controlling. (continued . . . )
C. does not include any retail or wholesale sales on the premises (other than over the phone and through the mail) nor any industrial use (other than custom crafts and sewing); D. specifically does not include the following: hotel, motel, nursing home, boarding house, restaurant, stable or kennel. General Home Occupation. A "home occupation" that: 1) only involves persons working on the premises who are permanent residents of the dwelling plus a maximum of 1 non-resident working on the premises at any one point in time and 2) does not meet the definition and standards of a "Light Home Occupation." (Note

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