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Home My WebLink Aboutcoa.lu.ud.Brand Building.01A-86 '.',,'" .' . ~ ,"'"'1 ,~ , , DATE RECEIVED( DATE RECEIVED CAS E NO. Of alb STAFF: S PROJ ECT NAME: APPL lCANT: Applicant Addre~ne: REPRESENTATIVE:.., tJC--eht. , Rep,eeenteUve A ""~Phone' WI (;, tJrutli)(Ml Type of Application: I. GMP/Subdivision/PUD (Jv1f}.(h(/~ tr) ifhl! 5-Jtj30 1. Concep:ual Submission 2. preliminary Plat 3. Final Plat 20 12 6 $2,730.00 1,640.00 820.00 II. Subdivision/PUD 1. Conceptual Submission 2. Prel imi nary Plat 3. Final plat 14 9 6 :1. All "Two Step" Appl ications "One Step" Appl ications / 11 $1,900.00 1,220.00 820.00 $1,490.00 IV. All 5 $ 680.00 V. Referral Fees - Environment"al Health, Housililg I!)ffice 1. Minor Applications 2. Major Applications 5 $ 50.00 $ 125.00 2 --------------------------------------------------------------------- --------------------------------------------------------------------- G~ CC MEETING DhTE: ~ll\.......l"t PUBLIC HEARING: YES DATE REFERRED: J.l'!;fii/c IN IT IALS: ()?;~,./ , === = = === = = = = == = = == = = = === = = = ==1;''';= = = = = = == = = = = == = = c" ==iF == = = == = == == === === REFERRALS: V G L City Alty Ci ty Engi neer Housing Die. Aspen ~Iater Ci ty Electr ic Envie. In th. Aspen Consolo S.D. Mtn. Bell Par ks Dept. Holy Cross Electric Fire Marshall Fire Chief ____ School District ____ Rocky 11tn. Nat. Gas ____ State Hwy Dept (Glenwd) StateHwy Dept (Gr.Jtn) ~ Bldg: Zoning/lnspectn Other: - ~ Roaring Fork Energy Center ;;:~Z=;;~~~;~7================~;;.;==;~;.;~7iUjT;:=======~:;;;:Z7~=~= ---- City Atty City En')inecr .x. I1uiJ din') Dept. \/ II, ~~':\ _ <- -tJ~,_ )<. Other: HWS\r0(,...."~)..3::::"Other: 6~ FILE STATUS AND LOCATION: CLnsf3J 10 V4UL;:T' , CASE DISPOSITION: , ..-.. f)rC1.l1} [j),'id"ij i).St: [)i.TC((I'\\:(\;ttl)f\ ~9 City Cou~l , " --------- Revi<?\~ed by: /1 . '-I, I q i { h~J fJi..,Vf;V, ,y,v.! 2 jlV.1\," j . '-' (1 , 0 'IJ--~ 10 )i'1'~"1''//' ,I}c+l ~, ~ a '1l'-f~ 01 Vi 411; Oh ), '" \.-tfP'r';J;;..,1 (3 :-11.l~i e~li{.H~ :{.~~fl!'i-;l lp).J? , / /1;;',;i'. ,y. tlvf J.Mc;f c." /'" o-!'vOkr,., i ~.h, ML )"" / ',;'. f3 ,,1,'1 r, . -- (: Jr: I. , I Of..' 'f. j.j.J 7'j~., ?..t<(' ~'',-; Q/:r/JJ'~'1'il, i}..~11- ~'/T'/II'.~.o:~ .::J4k .{>11;/~.Af.,.t ,h~ Sec.TJ'2J;" ~Lf-I ') .1.:'b) arc,,,- ~,', i /,,' : ,f "-,,-,,Joe., '"' ,Q,";J tll( w,J, "Nj\J}~! /.:, Y(T,A1:L';,-.." VAJ 1J.M'~ J , lif~u~,.'V>'. ~ A,,)~ M ,Jf-r,'1':'{'! ",", 9,0~ 'Q lj~l .71 D '. ,; ! , ,I l-; , , F', ~ 1 :,dj )./~1;: . /, V..i)vt,.-).~Flt-t"V..v/., '::'-'A::;,.) ; ;rJ'..fh t E.d 1l P4}'~.If' I/.,;(y..<f.o /t , .! i j' :, 'oo, ,'c0<,Ji't,lI.,; k , ! /h(i"~i~ cjIP/)..,t, .,-,.. ~'n, tJ<. ,~fi/~ ./ 1, /\",,:L,.;t,.] 1<1:"" ;,k -jJ; G:'f)"f;JA"~.1 ,Y..l_r.'""1~-< ~"';fl.<C.CA , ,I, '-L I I j.. " ~1v~^J a '?riJ, !.'1./liv/ttWr./;,,'1 ,~};. t~_ f; " 'jl~.. .~ '" '! ':J.:~(IJ{h<':",.. .' (kl:' :..I d/U& P..evie\'lC(~ By: l\spen P&.Z €l1l}r €~UllJ1€cji] . ^,t ,......, ,.-, !Jvf) MEMORANDUM DATE: February 24, 1987 TO: BILL DRUEDING, BUILDING DEPARTMENT STEN'EBURSTE1:N, PLANNING DEPARTMENT FR: FRED GANNETT, ATTORNEY'S OFFICE RE: BRAND BUILDING DEED RESTRICTION ~============================================================== Enclosed are copies of the corrected Deed Restriction for Harley Baldwin's units in the Brand BUilding. Apparently, attorney's for Garfield & Hecht erred in preparing the ~ Restriction by misidentifying the restricted units. Please verify that the four units affected by the deed restrictions are not the same units which were classified as pre- existing in Bill's letter of 2/13/85 (a copy of which is att- ached). If everything is as it should be, I agree with Steve's assessment that the conditional use approval is being adhered to. 1""\ ~ 1IEJH)RAlU)UM TO: FROM: RE: Aspen Planning and Zoning Commission Steve Burstein, Planning Office Brand Building - Use Determination DATE: February 26, 1986 ================================================================= LOCATION: 2,03 S. Galena Street. 1000IlIh Commercial Core - Individual Historic Designation. APPJ;.ICMPl"SREQQES'l': Andy Hecht, on behalf of his client Harley Baldwin, owner of the Brand Building, is requesting a determination as to whether or not dwelling units offered first to tenants and then, if they are not leased by said tenants, to the general public ~~ets the definition of an accessory use in the CC zone. BA€KGIU)ONJ)): The Brand Building has for many years contained commercial space on the first floor and a mix of commercial and resident ialuses on the second floor. According to Bill Drueding in a memorandum dated February 13, 1986, there have historically been in the building three dwelling units, some with upper story lofts. Plans submitted by the architect indicate that there have been four existing apartments (one cannot be verified) and five office/commerical spaces on the upper stories of the Brand Building. The owner propClses to create a total of six residential units and no cOmmercial or office space on the second floor. The change in use of the second floor to all residential space is exempt from growth management, dU,e to the individual historic designation of the building, but must be determined by you to comply with the use requirements of the CC zone. This use proposal was rejected by the zoning official and, therefore, is subject to your use determination. Pll()BLEII DISCUSSION: Listed in Section 24-3.2 of the Municipal Code as a permitted use in the Commercial Core zone is: "Dwelling units-accessory to other permitted uses, and comprising less than one half of the total floor area of the building". Accessory use is defined in Section 24-3.7(2) as follows: "An accessory use is one that is naturally and normally incidental to, subordinate to, and devoted eXClusively to the principle uses of the premise, and does not change the basic character thereof, as determined by its principal use". The applicant suggests that by offering the residential units first to the tenants of the building and then to the general pUblic that the intent of the accessory residential use is 1""'\ ~ established. A covenant restriction is proposed to ensure that tenants would have the first opportunity to rent the units; but beyond that the units would be treated as free market. It is argued that there is no way to further limit the use of the dwelling units to ensure they remain accessory without making them practically unuseable. Occupancy of a residential unit by the employees of the shops and offices in the building meets the definition of a permitted accessory use in the CC zone. Historically, the City has considered deed-restricted em,ployee units to be accessory in the CC zone. In the case of the Whale of a Wash Residential GMP application submitted in 1983, one free market residential unit accessory to a professional office space wa.s approved. The unit was intended to house the owner or employee of the office and, therefore, meet the concept of an accessory use. The space was to revert back to commercial use in the event that the occupant of the office moved out of the dwelling unit, as interpreted in a letter from Alan Richman to George Parry dated September 28, 1982. The 1984 GMP application for the East Hopkins Townhomes proj ect contained three individual offices and accessory townhomes as well as two deed-restricted employee units. The applicant represented that the townhomes would all be occupied by the professionals with offices below. The concept of accessory use accepted in both these projects is that free market residential units joined with businesses allows for convenience and efficiency in operating the business; and, therefore, is incidental and devoted to the principal commercial use. To allow free market residential uses, particularly short-term rentals over which the City would have no regulations unless condominiumization occurred, sets a potentially dangerous precedent in the commercial core district. Space presently available for commercial uses would be used instead for residential uses. This places pressure to expand commercial uses into surrounding zones, both office and residential. Furthermore, in many locations the downtown may not be a very desireable place to live. We would be inviting conflicts between residential requirements for peace and qUiet and certain commercial uses entailing noise, lights, and late hours. RflCOIDIBlmATIOI!I:We recommend the Planning Commission to determine that the proposed Brand BUilding dwelling units are a permitted accessory Use if those units are exclusively restricted to the use of the commercial tenants of the building. If there were a deed restriction ensuring that the residential units be rented to commerical tenants of the building or else revert to permitted commercial uses, then we believe the units would be allowable. Such a deed restriction should be submitted to the approval of the City Attorney. Employee housing deed restrictions would also make the units a permitted accessory use. If the Planning Commission is interested in expanded residential uses in the CC zone, then we believe that initiation of a code amendment is the ~, ,-, only way to allow for this. We do not recommend this approval due to its negative consequences for the downtown, as noted above. If the Planning Commission agrees that the dwelling units are accessory under the conditions stated above then the applicant must verify the calculation of residential floor area to ensure that it comprises less than one half of the total floor area of the bUilding, since this is also a requirement of the CC z one I s allowed uses. SB.nec.262 1""" efT -,,' MEMORANDUM ------ TO: Steve Burstein DATE: February 18, 1986 FROM: City Attorney RE: Brand Building - Use Determination 1""""1 PEN reet 611 You may find of interest the attached cases which discuss the definition and application of the term "accessory use". PJT/mc Attachments Ij'udicial Decisions 37 ZD 434-436 plan.. Because the city's ordinances were in conflict with those statutes, they were unconstitutional. gument that since he had maintained the dental office in the apartment building uninterrupt~d_since_m~c the cuy was now estopped from assertingtl1e use's iIlegality,-because hehaQ'a: vest.aright in the continued use orthe prop.;rf}7."The 'ylvanie., dehtist'did not prove that the city's in- ........ acti6i'i',without.more~' was"a clear'aware- A~ss~ry uses do not i.nc!udedental'~" ness-of;'"and strong, long-term acqtiies- offices In apartment buIldings because '\,ceti.ce in his use of the propeIfy, as they are not secondary and are not \, - quired to establish '3 vested right. usually found with such principal uses, fl' Green v. Zoning Board. of Adjustment 'of the City of Pittsburgh., Commonwealth Court of Pennsylvania [intermediate court}. Deci&lelt-A/2liU. 1981:.. 490 A.2d 4~/ Facts, The zoning board denied a den- tist's application for an occupancy per- mit for a dental office in an apartment building he owned in a residential z~e, which permitted accessory liSe~ cu,:)wma.- ri.fYiOCTcIei'irf'2..eflil<:~E!s.J(i!'Iltfii~uses, and not involving the conduct 01 a busi- ness, Belore 1953-;-UiTClentrsfllaoused part 0/1he biiilding' as'.. resideni:e and part as his dental office, In 1953. he moved his residence, converting the Facts. A 40-unit low-income housing building to apartments, but continued to project was approved by county and fed- use the dental office until 1983, Then, eral housing agencies, and the New Beth- in anticipation 01 sale 01 the building, lehem borough council adopted a reso- the dentist sought an o""upancy permit lutioh of need and agreed to rezone the for the dental office, J~,"itlf"..l!.oweveF,. McVay property to allow /or ConStFUC- amended its zo"ing b-l:.dinallce in 199$" tion of multiple dwellings, But, after permitting a den!al Qfli~aiiil"""""SSory a public hearing, the council Fefused use.in.theJll:&<!i.!!gc!!m:JI aSNpec1a' e,.. , to enact the rezoning, The propeFty {h;~~~~r~h~~~:~;~~;JF~_I, ~k~rw:1dz~:~n~e:;~~:~:.;~:~x~~~: ~pnel~M~ DoaF.rs ~enial of the ,'si"nary, but tile aPli'ealscouFt held that oen.pal1c.l{peFmit, the dentist aPli'ealed!, " it was,llot,Atthe same time. the owner ~_~, and developer applied fOF a special ex- Holding_ Th~.l1.'t'll!;5"ur! .,!Ifirmed the ception for a planned residential devel- trial COUFt, and Fei~ted !hedentist'$ ];F- opment, New Bethlehem had neversre_ gument, ffiatt'fi-e"deniiil'ofllcewas a le- ated a zoninflW~boara;so the g';-C~';'-;;;;der-tne' earlierorifinanceand council appOinted live members. At least now is a legal nonconloFming use under three'Of1h-e-appolrttees-h,nlsfgn-w..Jieti- the 1958 ordinance, The court held that tiOriSOpposing tile rezoning threeJ!!9.nths since the earlier ordinance permitted a ea~J5E-ap.P..Q,iJlt~~,ate~~a_!J~eir dental office as an a'fessQf.Y.__'l'!90 a opposition had b~,!'p~rsonat ~.!.!!ffi- dentist"-resi..d~,Il~' when the dentist ,Clal, ana ~ouli,tI)QUIJt~[ere ~lh_an moved his residence-in'1953.-flie dental objective decision, The board then con. office was no longer customarily inci- ducted' hearingS-on four dates; lasting dent and secondary to the principal use. over 21 hours. and deliberated for 15 which was then that.of.a.fQl<l)::l!!)it ~art. hours before unanimously rejecting the ment building,4lthough a dental office request for a special exception. The m,.ay-be-a.secoitaary use to an apartment _,.tri<!L~Ul:t held that the decisionwa$ bttiJding, it is not customarily incident -ora fO(-tn~ul that the matter was ~ or usually found with that principal ~t because'1hTor<li'nance ha<r6een use, The court concluded that the den- -declared Invalid. tal office was not a legal use after 1953 .---- -, ,.. '-, ..-- and. therefore, could not now be a le- Holding. The appeals courJ~~g~~ that, gal nonconforming use, the boaFd's decision was VQ!d for l:>Las, The court also rejected the dentist's ar- but held that the ordinance haa 'nOt been iAc~ory Uses " , 37 ZQ 4M " , / /Confficts of Interest 37 ZD 435 ~ Pennsylvania Zoning boaFd's denial of special exception' to, permit construction of low-income housing.is void for bJ~s v.:ItW...l!K.mllj.Q.[!ty, ~(th~_I:>.Ql!!d opposed the proj.ect before ,t~y ..""ere ;!I>point..d:,-" ".-.--- ....- McVay v. Zoning , Hearing ,B'oard, Common,wealth Court of Pennsylvania, [intermediate courtk Decided August 21', 1985, 496 A.2d 1328 ~, invalidated and, therefore. the matter was not moot and should be sent back to the trial court, The court stated that even without proof of any harm, there is a denial of due process in situations where a hearing tribunal appears to be biased, The COU!t reasone<UhaLit did not matter that there is a technical dis- ~ between re~~Ei:'-~h'~ the board members had publicly opposed, and administrahvelY:-graniiDi,i>I':aeny- 'ttl"gicspe-CialexceptiOfl"j;e;-mit, t~~mat- ter tFi~board actuaJIy actea-oQ:because th"..itlit!!E<i'ff!!~511'-'PIe.~s"d..opposition .l'? t'h~particular project and the end reo suIt was the same=negatr6iiOfThe pro. ject. The court distinguished cases in which there was no actual proof of bias on the part of the decision maker, The court ordered the trial court to reach a decision on the merits of the planned residential development request. Nonconforming Uses 37 ZD 436 - Pennsylvania Adding baked goods and delicatessen items to a roadside stand from which farm good's produced on the premises are sold is an illegal expansion of a nonconforming USe. Austin v. Zoning Hearing Boa,rd; Commonwealth Court of Pennsylvania {i"!,termediate courtf, Decided Augu,st 23, 1985, 496 A.2d 1367 Facts:l'he Austins own: a three:"a€re I?ali., €e~oLla m~j9:r tIl.oroughfare~ Two acre~ are p"lante& with apple trees, Before the enactment of the zoning ord:inance~ the Austins and' their predecessors opera-ted' a: business in a g,arage behind theiF house on the pFoperty, selling products either grown on tnepremises or produced from products grown on the premises, such as apples, cider, pea.rs, honey, and flowers. The business was open from August through March or April. The business is classified as a roadside stand, permit. ted only in rural residentia.l districts, and is a legal nonconforming use in a medium~ensity residential. district. The Austins filed an application to expand their nonconforming use, so that they could keep the store open 11 hours a day. seven days a week, all year. and expand their product line to include wine, delicatessen items, and baked goods, The board granted the ap- plication with regard to hours of opera- tion, but denied the application to ex- pand the product line_ The trial court Land Use Law November 1985 23 ,."..., ,~ ;,' :"!""';~"'"'~""~"~.'-"" ",....,:' ."p.l.it""'~"~'"~'~:;'~I"';~~'.t#~~~~:.NJl~fr'~J."'':f,:'':r;~~~tj:>:~,~~'i~fj~~~~";l>"~~:;'i'1:::~n-~~~~<~::':a~~~< _', .',,' ...___'0 _ #'.'~w~O.;&J _--...._ __ , !i' ~ ~ iI 1 <l .' l 5 ~ tCi ~ i: " 488 Pa, 490 ATLANTIC REPORTER. 2d SERIES party seeking it to demonstrate a clear legal right to the requested relief and a corresponding duty on the part of the other party. fd.; Erie Firefighters Local No, 293 v, Gardner, 406 Pa, 395, 178 A.2d 691 (1962), Mandamus is inappropriate where there is an adequate remedy at law. Rylke v. Portage Area School Distric~ 473 Pa. 481, 375 A.2d 692 (1977), In the present case the trial judge in determining that the Township must certify that death occurred in the performance of duties erred as a matter of law, We hold that Section 1 of Act 101 requires only that the political sub. division or Commonwealth agency certify the fact of death itself, The stat~te con. tains the words "shall submit certifica. tion." (Emphasis added), We, therefore, hold that certification is mandatory. Plain- tiff has thus demonstrated both her right IlIld the Township's duty, Next, there is no issue of fact to be resolved because the only issue is whether the individual has died, Finally, Plaintiff has no other reme. dy because an initial determination by the Bureau is conditioned upon its receipt pf the Report of Death form. See 4 Pa,Code 9 89.7 and 9 89.8, We therefOre hold that the requirements for mandamus have been met, !7c] In Diego; v, Aliquippa School Dis" triet, 15 I), &. C,3d 619 (198(}) the trial court held that mandamus Was proper to compel a local agency which conducted a hearing on the suspension of certain school teach. ers to issue an adjudication. The trial court did not attempt to dictate the result of the adjudication, but merely directed that the adjudication itself must be issued, The instant case is similar, The Township must certify the death; it is not required to certify that death was during the perform. ance of duties, but simply to certify that the death occurred, This it may not refuse to do. Thus, mandamus will lie and the order of the trial court is reversed.: 2. Having determined that a hearing lies with DGS and not the court of common pleas, we reject the To\\'nship's contention that Plaintifrs mandamus action was 'an attempted substitute ~ ~- ',"~, ~ ,. ORDER NOW, April,2, 1985,' the order of the Court' of Common Pleas of Montgomer\' County, No, 8:Hl4339, dated August vi 1983, is hereby reversed, This case is r~ manded to the said Court fm: the issuance of an order to the Township consistent with this opinion. WILLIAMS, Jr" J.. did not participate in the decision in this case. w 0- ~"ICEY HUM8Ut SYSTEM T IIIartin GREEN "l1diS.l'tvla Green, his wife, &ppellan!s, V~ The ZONING BOARD OF ADJUST. MENT OF the ,CITY OF PITTSBURGH, Appellee. Commonwealth Court or Pennsylvania, Argued March 11, 1935, Decided April 8, 1935. Citygran~ occnp'lI1eypeFffi.t fo~ rour dwelling unita in landowners' building but denied a permit ror a dentist's office on the first floor, and landowners sought judi. cial review, The Common Pleas Court, AI. legheny County, Joseph A, Del Sole, J" affirmed and landowners appealed, The Commonwealth Conrt, No. 120 C,D, 1984, Craig, J" held that: (1) after landowners had moved their residence out of the prop- erty the dental office was wt a permitted accessory use under then existing ordi- nance and, thus, was, not a legal noncon- forming use under' existing ordinance, and for its failurcto appeal to common pleas court within 30 days of the time the Townshipnoti. fied Plaintiff of its refusal' to complete the Re. part of Death form. ., .. '. " '~""""""'~~'~''''-~ ,_..:,-,'..". ,.,~.""-.,,.-~., ..,....."I~ ~ '-"",~''-T''''''~-~''''':-,,_,_ - ......'1!-~ ",.--- "!'f;lF. } f. , c o i f l i i ! ; I , ~ i ! 1 , t , ~~~~?t~,:.t.".t~~:'.<:;r,?,~,,-._,. :DER 985, the order of the Pleas of Montgomery 39, dated August IS, rsOO. This case is re-. Court for the issuance wnship consistent with , did not participate in ase. ~f~t~ .11 Sylvia Green, his pellants, lRD OF ADJUST- 'Ie CITY OF' JI1, Appellee. .t f>f Penll$:)'lvania_ oh n, 1985- riI 3, 1985. ""ll"1ieJ'I pe""it\ f,,1' Iandl>WJIeES' building 'a ....tist's olftee 0>\ downers sought Judl., nOn Pleas COurt, AI' ph A. Del Sete" ]" leES appealed, 'FIie No. 120 C,D, 1984, 1) after landowners nce out of the prop- ..as not a permitted then existing ordi- not a legal noncon- ting ordinance, and o common pleas court nethe Township noti. aI to complete the Re- ......~ ~',~- , -~~ ~, I f ~: ',' I' t- l I , F j; .~~. .,"', ~.. '~2~'.-'~..,,' ~,,-"",;;ri~.::::i;'~;':~' ;"v' " ..:......;.. "':.;:;~i,:;;.;-' ~,t "':'~'.s.> """,,",.,,),,:,.,;i":~"""'""'''''';;:''''~t'~W.'''''~.!;;h''':'-..,, !""",-, ~ .~~~~.:t-,~.,-~..,..~....;".ri?i$.~i,._.. GREEN v. ZONING BD. OF ADJUST. OF PITTSBURGH Cite as 490 A.2d 488, (Pa.Cinwlth. 19M) from asserting apartment house and dcntist's office before enactment of new zoning ordinance, under which dentist's office could continue only as a, nonconforming use, was insufficient to establish the clear awareness and strong. . long-term acquiescence on the part of mu- nicipality in the unlawful use of the premis- es under the prior ordinance, so as to estop municipality from asserting illegality of that use. ),-" , f . ~ ! . i f (2) city was not estopped illegality of that use, AfIU1Iled, t I 1. Zoning and Planning <3:>323 Where new ordinance zoned subject property, on which nonresident Owner had his dental practice, for multifamily dwell- ing use and allowed a professional office accessory use only as a special exception and only if practitioner lived in the build- ing, the dental office could be a lawful use only as a legal nonconforming use and could have that status only if its existence at time of the ordinance was lawful under the prior ordinance, 2. Zoning and Planning <3:>306 After landowners moved their resi- dence out of four.unit apartment house, 11".t <>1 which one Owner had and continued W IISe as. office for a dental practice, the ()ffiee. was not apermitted uaccessory use" under 1!l23 Pittshurgh zoning ordinance de. finmg accessory use as a use customarily incident to primary use as residential dwell- ings-. ). Z<>ninll' and Planning <3:>301 .. , '1&_ establish a right to an accessory liS.... tlie, landowners must prove that the use sought is secondary to the principal lise" anol that it is usually found with that pri1adpa~ use. ~.. Zon"'g anol Planning <3:>779 Hunie$pal in-adiont. without more, can~ Ilot support a finoling of vested right suffi. eiellt tOeswp a mUllicipality from asserting illegality of a nonconforming use. 5. Zoning and Planning <3:>779 Fact that one member or zoning hear- ing board stated on the record that he knew that apartment building housed both 1. The board, in addition to granting an occupan. cy permit for four units in. the main building, also approved one dwelling unit in the carriage house at the rear of the lot. 2. In a zoning appeal, where the common pleas court, as here, has taken no additional evidence, ". Pa. 489 Harlan S. Stone, Stone & Stone, Gerald Timothy Conboy, Pittsburgh, for appel- lants. D.R. Pellegrini, Kellen McClendon, Pitts. burgh, for appellee, Before CRAIG, COLINS and PALLADI- NO, JJ. CRAIG, Judge. Dr, and Mrs. Martin Green appeal an order of the Court of COmmo.. Pleas of Allegheny County which upheld a decision of the City <>f Pittsburgh Zoning Board of Adjustment grant!..!!, an cecupa>)cy permit for f<lur olwellinll' unita in the landowners! building,' at~l\I~rtJfu Negley Avenue, but denying a pem>it fer a dentist's office on the fu.st floor at that mainbu!lding. We must determine' whether the zoninll'.l>oard! eo..eetly CGlldlld!ed ti!at a dentel <>filee use <If the properly lost whatever legitimate status it ,may, have had! when Dr. Green moved his residence fr<>m the premises in 1953. Before 1953, Dr. Green and his wife had used part of the bUilding as their residence, and Dr. Green had maintained an office for his dental practice on the first floor, In 1953, the Greens moved their residence elsewhere, but Dr. Green continued to use a portion of the building for his dental Commonwealth Court's review is limited to a determination of whether the zoning board abused its discretion or committed an error of law. Solow v. Zoning Hearing Board of Borough of Whitehall, 64 Pa. Commonwealth Ct. 414, 440 A,2d 683 (1982), ~.)''!",,~.......-~ ~ ~ .~.',"'" - . " ,\'.. '''''''''I!"',="'.,,,,,,,,~ .~""",...-...,-". , ~'~.?,'.' ...,.~.~'~ '", ", '~.',..'",\.~w.,... """" ",""'~~"";;;\;.,~"f.~'~,;""i""%._"',","'':'':i'...;.",:.""."....';.,;,.,-ii~~"""~W>~~~~.:,.'>iJ...0:-~~"'#,.:.;l:i:Q...;&:'f'~ to...~.f'..;;~;.~:,;..;.f&'.oYj::AA"~cil<~y,, - I"" ,-" PP;""<... ,.... ) 1. J t ; f ~ { I I 1 I t " , J I f ~ i i ~ t .~ ! I . 'I ~- l l ~. 1 ~ , i , } , t .~ , 1 .' f i , ~ ;. f 1, t ! , t i ! , i 1 " " I a I ii: \I :! ~ ~ .' . 4:' :; W < 490 Pa, l:"'~~i:~:~:'~,,? ..., :" , .~ !;;' 490 ATLANTIC REPORTER, 2d SERIES (~ '" ~!:' practice. The Greens rented the remainder of the building as apartments. That com. bined use of the building for apartments and Dr. Green's dental office have contin- ued unchanged from 1953 to the present. In 1983. the Greens, in anticipation of plac- ing the property on the market, sought an Occupancy permit to confirm thatcombina- tion of dwelling unit and professional office uses. Under the Pittsburgh Zoning Ordinance of 1923, the Greens' property had been zoned B residential, which permitted the following uses (in addition to other uses not involved here): (I) One family dwelling; (2) Two family dwelling; (3) Double house; (10) Accessory uses; (the provisions shall be the same as prescribed in 'A' residence district), The provisions under A residence district of the 1923 ordinance defined "acceSsory uses" as follows: Accessory uses incident to any of the principal uses above listed and not involv- ing the conduct of a business, 'fhese accessory uses shall be: (a) Accessory uses customarily inci, dent W the above uses, En Under the 1958 zOning ordinance, the property was zoned R-4, which permits multi-family dwellings, but allows a profes. si""aloffice accessory use only as a special exception and only if the practitioner lives in the same building, Ifence, the dental office can be a lawful use under the present (1958) ordinance only as a legal nonconforming use, and it. can have that status only if its existence up to 1958 was lawful under the earlier (1923) ordinance_ (2] The pivotal issue therefore is wheth' er, after Dr. Green moved his residenceout of the premises in 1953, the dental office 3. See Relldin v. Zoning. Hean"ng Board of the Borough of Media, - Pa, Commonwealth Ct, ...,......488 A.2d391 (1985). wherewe addressed a similar factual situation under a. zoning ordi. continued as an accessory use permitted under the terms of the 1923 ordinanee: that is, was the dental office, between 19;>3 and 1958, "customarily incident" to the principal use, which was then that of a four-unit apartment house, with residential occupants unrelated to the office, We agree with the board's conclusion that, after the Greens moved their res;, dence out of the property in 1953, the of- fice for Dr, Green's dental practiCe was not a permitted accessory use under the 1923 ordinance. Unlike the earlier Pittsburgh zoning ordi- nance, many zoning ordinances set forth specific types of accessory uses that are permitted. Some ordinances explicitly state that professional offices are pennit- ted, or are permitted only when the practi- tioner lives in the building.> The landown- ers argue that, even though the 1923 Pitts- burgh ordinanee did not contain such SP& cific language, a professional office acces- sory use was permissible although the practitioner did not reside in the building, (3] However, in order W establish a right to an- accessory use, the lalldowners'. must prove tllat the use sought is second. ary to the principal use, and that it i& u~ual1y found; witl> "thatl?ri,..,il?af u&e, Food Bafj', Inc.. "-. MaRon~nfJi, Township! Zoning Board of Adijiwtment, lH Va. Omt- monwealth Ct. 304, 414 A.2d 421 (1980), The 192;1 Pittsburgh zoning ordinance ech- oes that standard in its definition of "acces' soryuses" as "customarily incident" to tbe permitted uses. Acknowledging that "certain general types of real estate usage have a natural tendency to lead to certain other more spe- cific uses," Klavon v. Zoning Hearing Board of Marlborough Township, 20 Pa, Commonwealth Ct, 22, 27, 340 A,2d 631, 634 (1975), Pennsylvania courts have per- mitted certain accessory uses under other nance which permitted professional offices in a residential district only if the practitioner also resided in the building. ~..... ~ '. .,~ I' ._, ,""' ,. ~,~~. ",,~'._, ,~. .... _'" '",,~ "~.~'.~".I">_. .-'~......,....,\ _,.. ~..",_.I'(,. '" ,. ,-......"',-',;;'-'.7. ;gory use 'permitted the 1923 ordinance; office, between 1953 Iy incident" to the Nas then that of a ruse, with residential , the office. board's. conclusion s moved their resi- erty in 1953, the of- ntal practice was not use under the 1923 otsburgh zoning ordi- >rdinances set forth ssory uses that are rdinances explicitly I offices are permit- .nly when the practj- ding.' The landown. 10Ugb the 1923 Pitts- ,ot cootain such spe" lSsillnaf office Mce", ssible although the ",ide in. the building, ,.-de" f.0} establish a l>Se, thelandownem Ise 800ght is sMond' use, _d that it is tbat principal! IlSe', rOOonin, Townsi!ip !$tment, 51 Pa. Gom:' .l4; .A.2d 421 tllt8&). oning '1.-dinanee ectt. , definition of "acces, arily incident" to tlte ,t "certain general sage have a natllral 1:ain other more spe- v. Zoning Hearing h Township, 20 Pa, :, ?:T, 340 A,2d 631, 11a courts have per- ry uses under other ;:>>rof.essional offices in a if the practitioner also - .- 't':'~ I r , i ! t , f J , , r: . I' f .;; ~.' , ~ 11 " " r l ~. , I i i I ,,~.... ...'- '--... ,-, ,-, GREEN v. ZONING BD. OF ADJUST. v.' PITrSBURGH CUe as 490 A.2d 488 (Pa.Cmwlth. 1985) ordinances which employ the same broad definition of accessory use. See, e.g., Gross v, Zoning Board of Adjustment, City of Philadelphia, 424 Pa, 603, 227 A.2d 824 (1967) (restaurant permitted as accessory use to bowling alley); Novello v, Zoning Board of Adjustment, 384 Pa, 294, 121 A.2d 91 (1956) (carwash permitted as accessory use to commercial garage and repair shop); Klein v, Lower Macungie Township. 39 Pa, Commonwealth Ct. 81, 395 A.2d 609 (1978) (tennis courts permit- ted as customarily incident to residential dwellings in that township)_ In this case, the landowners urge that the dentist's office was secondary to the principal use. However, unlike the above cases, they have failed to establish that a dental office is customarily incident to an apartment house. Consequently, tlie land. 0wners'~ argument meets only one . prong of the test, and is therefore insufficient to establish.. permitted accessory use, Food: lJau. Aecord:" Cnam'eai",,~, '" , ZO'l'!ing Hearing ~oard: of East lJredforlf. T@wn. ship, 3{l Pl<. eommonwealth Ct, 544, 374 A;,:!.t 752 (1~77h The landowners point to two New York cases, in which the practitioner did not reside in the building where the office was located<, to support their argument, SMwartz v, Chave, 53 Mise.2d 1007, 281 N.Y.S.2d 13030 (1967) and Kurlander v., In. eorpqrated: Village of Hempstead!,,3ol Mise.2d 121, 224 N,Y.S,2d 461~1961!. ]fow~"er, the court in SenwarGz ordered the grantin&, of a special exception under an .ordinance wltic,!> expressly permitted dental offices in residential districts Ity way of special exception where the practitioner did not reside in the building, unlike the provisions of either the 1923 or the 1958' Pittsburgh ordinances, In Kurlander, the A residence district permitted accessory uses by professional persons, but expressly limited such uses to dwellings in which the practitioner resides. The B residence district, where the appli- cant's property was located, permitted any uses permitted in more restrictive zones, Pa. 491 but made no. mention of accessory uses. The court concluded that accessory uses were permitted in B districts, but that the limitations upon such uses in the A districts were not applicable in the B districts, so that the ordinance's general definition of 14access<?ry use/~,similar' to~ Pittsburgh's ,"customarily incident" language, did not restrict professional accessory uses to the practitioner's dwelling. However, that New York trial court failed to follow through in its analysis to determine, as here, whether medical offices are custom- arily incident to an apartment house. 14. 5] The landowners alternatively ar- gue under the vested right theory that, because their use of the property as an apartment house and dentist's office has continued uninterrupted since 1953, the city is now estopped, from asserting the iIlegali. ty of that use, However, munidpali iila<l> tion, without ffi0re',cannot support ,a, vested, right. Dewald v. Board of AdjUstment, Cit!! of fittsb"rgli" 13 Pa. C;Olllmo.nwealth Ct, 3&3,30211 ~.2di 9-2,2 (1974). AIt""u&,h one member of the zo.ning hearing ~<1"rd stated on the ,reC<!rd. U.at he knew that the Greens' buildlnll\ ho.nsed both an apartment house and" dentist's office before 1958, that is not sufficient evidence to, establish a "cl~ar. awa~efles,s: ~ndJstr0n~~ l~~~-~J;ma~- q,uiescence on the part of tlltl mllniciIialltyJ" Dram"., ,'" #"j"'f Southa""pton 'Fown- sllip ZIJ.1}inf!Jle€1/Ii"!"f; Soard!, 40 Pa. COm- mlJ.n)'l'ealtl1l €lit, 248', 2417, :l9\! .A,2d M, 56 ~19,19), Hmdo"!!l AP1{6f1JP, 4ilZ Pll), !ii\!l)l,]9i~) ;\\.2.Ji 349 ~1963), "n<i'l"61f1'4Stii"p €>f Hf1Jvcrford! VI Spica, 16 P",. Go>n",,,nwellltli> Cte :1261, :128 A.2<1878 ~t!!-74i),1I~",n whid, tll,; bndo.wners rely, are distinpishal>Je, In Heidorn, the nonconformity, which consisted or an over- hang and stoop in violation of setback re- quirements, "stuck out like the proverbial Sore thumb, and ." like the stoop it was for the world to see and stumble over." 412 Pa, at 573, 195 A,2d at 351. In Spica, in addition to evidence that the township had acquiesced in a commercial use of a residentiill property for thirty-six . . ~ t ~". ~. ~,H :~'1: ::.; "'~"',..,~4.~ .=, '."~""~.""~"'" ."...."..":'-"t\'V(..,.."".,,~,,::~_~.... ..""..~.....,~~, -I";_,.,.,,.,'.....~,7~_~,~~ ~1I:l:"" ~ - ~ .~, .,~..---' , ~---......,," ~"'~'"''''~.'..~''''''''~;t''''''''''''~' I ! I i , . " , t f I , \ i , " 1 ~. f: i, L , j , t ~. " ;: ~.. l J ) ~) f I' I, i ~' r I . i I i ~ "~...,.,.- ""~'j';if~'';:'~''~..\'ll'''';7< 492 Pa. " ',-' ...; ;":~-';.:.:,'~~,~. "r'r.;;':'il'~Al!.:"r.,,",- .........:Jl..;'~~,,';'O,:-.~,.""':,\ "'~'~"'~::~;";~~_;'" 490 ATLANTIC REPORTER, 2d SERIES years, there was evidence that the town- ship had issued a building permit for the property, knowing that the construction was intended to enhance the commercial use of the property, This court empha- sized that its finding of a vested right in Spica followed from the specific compel- ling facts of that case, which combined thirty-six years of acquiescence with gov. ernmental action sanctioning the noncon~ formance, and the landowner's good faith reliance on that action, 16 Pa. Common. wealth Ct, at 334, 328 A,2d at 882, Without equally compelling facts, we cannot conclude that the Greens have es~ tablished a vested right to the continued use of their property as an., apartment house and a dentist's office, Accordingly, we affirm, -- ORDER NOW, April 3, 1985, the order of the Court of Common Pleas of Allegheny County at S,A, 353 of 1983, dated Decem- ber 20, 1983, is affirmed, :1: Hi ~I il': l': ii: ,j' ~ .~,. ~. <' w C:) ~~lYHtJM8tRS~TfM. 'T ., .' ;; i .' Anthony AURES:ro, Appellant, v~ COMMONwEALTH of PennSYlvania, DEPARTMENT OF ENVIRONMEN. TAL RESOUnCES and John' H. Bitzer and Fred Hesse, Appellees, Commonwealth Court of Pennsylvania. Argued Jan, 30, 1985, Decided April 3, 1985. Snowmobiler brought action against Department of Environmental Resources and district forester to recover for injuries sustained when his snowmobile struck pro- truding tree stump which was concealed by ," ,'~ '1 .... ~.~ ''''''~r.<"'''''~ ,~, -, snow on frozen pond that was designat(...~ "snowmobile recreational facility," OWOhl by the Department and maintained bv th,: district forester. ,The ~Court of CO~ZI1{J:l Pleas, Pike County, Harold A, Thom'''''n Jr., P 03., granted preliminary objections m nature of demurrer and snowmobiler ap- pealed, The Commonwealth Court, No 1747 C,D, 1984, Crumlish, Jr., President Judge, held that the Commonwealth Was not an "owner of land". within meaning of recreational Use statute.which relieves Own. er of land of duty to keep his premises safe for use by others for recreational purpOses or to warn of dangerous condition. Reversed and remanded. Palladino, J" filed dissenting opillio"," States ~lI2.2(2) With respect to pond ""hich was desig. nated "snowmobile recreational facility," owned by Department of Environmental Resources and maintained by Department's district forester, Commonwealth was not an Howner of land" within meaning of recreational use statute whieh relieves an owner of land of duty to keep his premises safe for use ~y others i<)rreereational ~ur" poses or to ",,,r,,, oJ! dangero"", eonditi"", 68 P.g. SS 441--1, 447~, See publicati0nW()n:f~.an~.l!~F~$e~ f()f . 0t~er'. Judkial' C0llstrue!io~$;. and! definit10Bs. Edward R. Eidelman, Allentown, for ap. pellant. Stephen A, McBride, Krawitz & Ridley, P,G.. Milford, Victor p, Stabile, Peter J. Kramer, Deputy Atty, Gen., Harrisburg, for appellees, Before CRUl,fLlSH, Jr" President Judge, and ROGERS, CRAIG, MacPHAIL, DOYLE, COLlNS and PALLADINO, JJ, OPINION CRUMLlSH, Jr" President Judge, Anthony Auresto appeals a Pike County Common Pleas Court order granting the ".. ~, '''~'''>,'~~ ,,"""', ~,.....~ .~ --. .~~. .... 37 ZD 427-428 ..... (, Judicia' Decisions ! "). Holding, The highest court affirmed in favor of th.e city, TIte court nqted tnat when"a raftic~la;r prQce&ure,is'no~spe:- cilicalty provided for by a rule, a muni.- cipaFcourt may proct?ed. in any lawful manner consi;stent',with the,constitution, statutes, ,case raw,. ancl!<.)n:hnam:es', The court, noted: tnatenforcement of a mu'- nidp~J ordinam.::e in MissQurii isa civil action, rather than,a:cr-imtna.l action. !he C0urtre~S0rH2dt~'at. ~!fte statutes dted by the owners and renters apglied only to €riminal; acti:ons a,ncl' were- not in- tendedi to prevent seafch warrants-for otner purp?ses.,aecause the dt.y"s OfCU- fCiJIi'~~Ql.nt nance does not deal witn any of the situ- i 72D 427 "":-Missouri "" af tion; c~ver~d by the ,:taMe~,tne cou~r . ._ ",' ,~, ,'" '., ", -.,'\, ,OUflu: tnat, It- tS, Jil..otlif.lC€Hl'SI.stent WI-tr' e, Ity ord," ul:a~' 3!u,~no'nzm.g,',mUn,lelPat. \', those statutes , /,: judges 1<)" isst1~Sea'Fen;wanants fOF :.. .... . ' . . ..... '. " ~; :ert:~:e n,..,'t:s" 'a~~ i.~:,,~~"O,. ml;':gn h,~,:!, S,= ; does /, .,'.:./,.,A,~'\{~;i,.".., 'c."".. . .. 0'.. ',. ',"",'. '. ~',: , not violate MissouFi'.Constitution. /:.,;,;." c. y~~~ .ses,. V. '.. .. Vrech v, City of Colu,mbia, Suprem<;./ 0:. ,~3!GD 428 - New Jersey", , , Court ofMLSsou-n [hl,ghest court/,./ .; '--m'__",,'_m_."_~ Decided Tufte 25, 1985, 69L,"W2d 813 Sleepmg accommodatIOns for . .----"-,..~_. . restaurant employees do not qualIfy Facts. The city of Columbia rental con- sa customarily incidental servation ordinance requires applicants a '.zs~ory use. _~ desiring to operate an apartment or Char1ur-Brown..of.Chatham-u:'-Board of . h t t tT t f Adjustment, Superior Court of New rooml~g o~se 0 presen a ~r I 1~ eo Jersey. Appellate Division (intermediate cor:'plI.ance m. order to obtam ~ license. courtJ. Decidedjune 26. 1985.495 A.2d 119 ThiS city ordmance ,also prOVides that when an application for a certificate of compliance is made, a municipal judge may issue a search warrant for an in- spection to determine compliance with building standards and zoning ordi- nances. The ordinance was challenged by owners and renters of rental property, who contended that it violated the Mis- but his option expired and someone else purchased the property before the case went to trial. The trial court ruled that the city had illegally denied the license and ordered the board's decision to be reversed. How- ever, the trial court refused to grant man- damus because the option had expired, The city appealed, On appeal. the city argued that the language "any non- residential use permitted" means the per- missive uses, rather than permissive uses and conditional uses. Holding. In affirming. the appeals court noted that C-2 is a higher zone than M-l. The city's zoning scheme is a traditional euclidean or cumulative scheme, so it would only make sense that the lower zone would include the uses that a higher zone would permit, the court said., Qtherwise~; a,uto repair sh~ps would be excluded ina 10",er zone but permitted i.. a hig;her zone,. This resu!! does not follow' a €umuFative pattern. The court also ruled that the language "any nonresidential use permitted" does not refer cnry to permissive uses.Permit:- led, added the courl. means allowed, TIte court also found that tne issues were not mooted by the fact that some_ one else o€€up:ies tne property on which Cun..ingn:>m had the option, The issues were viable tnrougn all the proceedings, and it was p'foper to neaI' them:. 20 November 1985 Land Use Law soud Constitution because various Mis- souri statutes and Missouri court rules limit the authority to issue search war- rants to appellate judges and judges with original. jurisdiction in criminal cases, and delineate the reasons for issuance of search warrants. Municipal judges' juris- diction is limited to violations of muni- cipal ordinances, and the statutes do not mention administrative searches. The owners and renters reasoned that the city has exercised a power limited by statutes and court rules and that the exercise of that power is inconsistent with the high- est court's constitutional authority to promulgate the rules for Missouri courts. The trial court ruled in favor of the city. and the owners and renters appealed. The case was transferred to the highest court before the appeals court issued an opinion. Facts. The Charlie Brown chain of res- taurants provides sleeping accommoda- tions for six key employees as part oUts compensation program. In the past, the accommodations have been in some of the older restaurants. but new. restau- rants have not had the accommodations on the premises, In 1982, the chain leased a site in Chatham and got site plan approval for extensive renovations. The approval contained a condition pro- hibiting residential uses on the restau- rant's second floor. The site is in adis- trict that does not permit residentT~i use. After the SiiepJiih api>roval;-th~'restau- ran~ leaseall\~'prerrii$e~~I1<1began ex- t~IlS.~Y~ renovatiOns. Abo~t three months later, the restau- rant applied to the construction official of the township for permission to put sleeping S!gQ!:f1modations in the restau- rant, The official denied the application, based-on tne"conaitionarappr"vaI6fthe site plan and the land use ordinance, The restaurant appealed to the zoning board, wnich affirmed the denial. The trial court affirmed the board, The restaurant appealed. contending that the sleeping accommodations are an accessory use. citing o;prnr;:it.y-.2nd:ijie lack of affordable housing and transl'or- tatlon m the area. 1 he restaurant also contended' that It W'as~tlea,.li1)-~ yaFi~' am,.l:,tha.t the zomngboaro~easi6n WaS'ai'bitrary, and tnat tne zoning board shO'uld not have taken judicial nolIce onne sife':p.lan..aAAC9.l1.a1UJiirlng-:tfte6e proceedings. t~e .restauraQJ....[eotefl._q: hOtl.~jn.a,.ne.a.r:.by~j;QllUl1un.ity"for,$'700 per month....--.--" ~o":~,- lFte apl?$.i!!~ court affirmed }hat tne restaurant&,,,o,~ entitled to pro_ vitle.-sleeping, aocommodati"... 0..' ilS premises, The ~",ii"fs!ati!d that unl~ss 3\ '''\ us~is;,f)~;mi<tted ~~.. ~4r~~€~~~It' ~s~'~~~- ~!U~Y,1!s~e to;~~Jf:1ef.w,itt~t!f,~i~> i~i~iii(l):~ hibited,An ac~ess9!11~i. ",,,.e in. cideiUa:t totF\e FI'la1:n u~e'~Fl~FI'l<us~5€"~u" V'lo$j' -mb~'lI1~_a~d:01\'ii~<w~~.rta!li9'" t", the 'Rain, use, tlUl €<>>m! l1~eO!\l 'F1l" courf,afsb:" sfatk~~~~f~,~~~~~~~~~,,~se should be custOiii~"'aliliOu~!ilt may l5e foundv.c,.t!.t..9QW,a, s.ll)aJl ,percentage '. of simil~rmain,uses_.The,wurt reasoned 1haTih~ ~s~ must be subord;';~i~' I';: and < lfisgJentarto.' a TYP~"of15iisinessin-gene- / rat not "to only the particular busine~s' in-'qu~stion, The" restaurant ha;y>rily presentea"-evidence that it would De more economical for' this 'resra~ant to have sleeping accommodations, and that such arrangements existed in colonial times. The court held that it is not customary for present-era restaurants to provide sleeping quarters for employees, The court also held that the zoning board properly took notice of the plan- ning board's resolution that specifically prohibited use as sleeping quarters, be- r ..", .Judicial Decisions ~ 37 ZD 429-431 cause' the restaurant was aware of that resolution long before it was entered into evidence, Because the restaurant had not appealed the planning board's decision, the court found that it was barred from relitigating the same question with the zoning board, The court also affirmed the zoning board's'holdlllgrhat the leotauranrlsnot entitled to a use VarIdw....c Lt:1....c:lu:se It haa not 'Shown special. circumstances. The corrffStare(rlFail:-special~irrllm<:tancesm could be shown only-if-the..J.lSe...Ulher" er:'lly-'_~_~ved the QE!?~~~c >5~.~~' v~he gengal wplf::!rp would 5e servea"l5ecause the use .is..peculiaclyJi!jor the [ocati9!>, "'Because the restaurant property can be pur"to Its zone use, and the restaurant hado!lly shown th;;titWoilld15e more ~m,caT(o-P_~~mftthoaa- tions 0,,_ ~l>e p,re!llise~,- te cour!Tound that .special circumstances -dio -not exist. .......~._----- .....- -~--. Dedications and Fee,S 37 ZD 429 - New Jersey A municipal utility authority may \, not charge t() a developer's lots a \ sewer capacity reservation fee which! ..... is,neith~r a serv, ke c::harge nor a,l ) Connection fee... ..... ./ J-lQ,;ult6tN'QJQ.~ship MU!!J9p-ELUt-iIlties Authority v; Apple l'fee Corp., Superior C"urt of New Jersey, Appellate Division /itdermediatecourtf. Decided /,une 27, 19$5, 495 A2d 434 fa€ls. In 1977" the developer b0ut$nt a residential subdivision development Irom its original developer, wno did not mention3'ny sewer system res~fvation fees. There were no Hens on the prop- erly, The developer later lost its finanC- ingrommitment and was only able to build 64 units in the second pnase of the development, although it had sewerage system connectiofl permits for 100 units. In 1979. the utility autnority rescinded the commitment forthe unhuilt 36 units and charged the developer $30,638 in "sewer reservation charges" for the 36 units, The utility autnority sued to col- lect the charges, The trial court ruled in favor of the utility autnority, holding that the fee was generally of a type which a municipal authority could im- pose, Tne developer appealed, Holding, The appeals Court reversed in favor of the developer, The court exam- ined the statute that gives municipal util- ity authorities power to coUect fees and concluded that to be allowable, a charge must be either a "sewer service charge" or a "connection fee;' and that the reve- nue from these two types of charges must be adequate to pay the expenses of operating and maintaining the system. The court reasoned that unimproved property, which is not actually using the system and cannot be charged for ser- vice, still benefits from the establishment of a sewerage system, but cannot be charged for the original construction cost of the system, if tnat cost is part of tne connection fee, The developer had paid a connection fee for the 36 lots, Be. cause the reservation fee was neither a service charge nor a connection fee; the court concluded that it would necessar- ily raise more revenue than necessary to pay the system's expenses, and that sucn a charge is beyond the authority of a municipal utility autnority, Public Finance 37 ZD 430 - New Jersey A regional development district tax- sharing. plan amongst municipalities can be considerately disproportionate, including riotaa:ounting for assessment modifications made in tax court, without being . unconstitutional. Township of North Bergen v. Hackensack Meadowland Deveh::>pment Commission. Superior Court of New Jersey, Appellate Division {intermediate€ourtl. Decided April 25, 1985, 491 A.2d 1314 facts. The tax"shaFing plan of the Hack- ensa<k Meadowlands Reclama~ion and Develol'",ent Act established an "inter- municipal aC€0unt" and a. mechani-sm to ad:just tax revenues resulting from. clevel'"'- opment of the Hackensack Meadowland District. Pursuant to this tax-sharing plan, each year a municipality would pay into the account or would be paid out of it. depending on whether tne tax revenue in the comparison year would produce more or less tax revenue than would have been produced in 1970, Sur. plus funds are distributed to the munici- palities in proportion to the area of the land it has in the district compared to tne total area of the district. The town of Lyndhurst, a party in an earlier suit against the taxing plan, sued, again claiming that the scheme is arbi- trary. The scheme's failure to take into account assessment reductions entered in the tax court, the town claimed, causes itto pay more than its fair share into the account. The trial judge entered sum- mary judgment against the town. Holding, In affirming, the appeals court noted that the town failed to present any evidence that its situation was unique. Even if the town did pay more than. its fair share, considerable devia- tion is constitutionally permissible. The court commented, in ruling against the town, that. a municipality usually does not have standing to raise equal protec- tion arguments against a state. Even if it did nave standing, the town failed to support its point with evidence, the court concluded. Environment 37 ZD 431 - New York A finding that no environmental statement is needed for a subdivision proposal is proper whena planning commission has identified and examined in detail potential environmental.impacts. Southampton Associationv. Planning Bom.d, Supreme Court of New York, Appellate Division [intermediate court], Oedded July 8, 1985, 491 N, Y,S,2d 388 Facts, The owner of a 34-acre parcel that nad been used as a working farm sub- mitteda plan showing subdivision into 47 single-family homesites and one five- acre parcel to the planning board. The plan confoFmed with all zoning regula- tioRs, The. five";acre parcel:" which is, zoned for. offi<< buih:Hn~s,contains. a: historie n0use, The balanre of the prop- erty is zoned! residentiah The property owner submitted: long and! ~nort .envi~ ronmental' . assessment forms, so. tha,t the planning board ",mId assess the potenHalenvironmenta,} impad oE tne subdivision, About a month laier, the board authorized the owner to submit a preliminary map, including revisions dealin,g with roads and park space, Af- ter the preliminary plat was filed, the board received a comprehensive written State Environmental Quality Review Act (SEQRA) evaluation, a transportation analysis, and a traffic report. The board tnen conducted a public hearing on the application for preliminary approval of a plat that incorporated the board's re- commendations. After hearing public comments, the board found that because certain mitigation measures would be employed, the subdivision would have no significant impact on the environment and that, therefore, no environmental impact study was necessary under SEQRA, The board granted preliminary approval and, about a month later, the Land Use Law November 1985 21 CHARLIE BROWN OF' CHATHAM v. BOARD OF ADJUST, N, J, 119 Cite as 495 A..2d 119 (NJ..super.A.D. 1985) 202 N,],Supcr, 312 I. Zoning and Planning <3=>281 CHARLIE BROWN OF CHATHAM. Restaurant located in zoned district INC.. a New Jersey Corporation. prohibiting residential use which sought ap. Plaintiff-Appellant. proval of application to provide sleeping accommodations for six employees was pro~ hibitedfrom mixed residential-commercial use unless dormitory use fell within definj~ tion of "accessory use" under land use ordinance. 1;" v. BOARD OF ADJUSTMENT FOR the TOWNSHIP OF CHATHAM, Defendant-Respondent. Superior Court of New Jersey, Appellate Division, Argued April 22, 1985, Deeided June 26, 1985, Restaurant located in a zoned district which did not permit residential use sought approval of appliea!i.." I.. pr...iOO sleeping aecom~Q{fati~n~ fer'$i:~ ..~.m~r~.l!~s ..)~.;~~€;" ..nd floor a!>amaenls: <lver resta"rant. Township zoning board of adiuslment dot, nied restaurantts. appli~ation a~d .F~S~tl:~ rant appealed, Tne Superi.," c"url, !Law Division., . Morris; Courytf~,,;_~~~w~~~:~~~ ~~s,~ tauranl appealed. The S"perl..r c"urt, Ap. pellate DiviSion, Deignan, J,A,D" held that: (I} for purposes of determining whether the sTeeping accommodations were an ac'- cessory use under la.nd USe ordinance, res~ lauran. failed Ia sll..w that providing em. pl..)!ee" silleplli '!)narteFS on tile premises was reasG1'j,aMl' relaliedi or incidental to the operalro.m ot li1i.. r""la..ran!; ~2~ reslaurant waS Jio1l e>ltlllfedJ Ia l'"'w"'" sleeping M€om. m<>dati!,n" t,,~, its; emp"'yees 6n oasiS ..Ii a€€e.s""l' nse un.fer fafldl "se or<li""n€e.; (3), oo"'''''hiJll .0n"'lI1 boa,rdl was authorized' to Ia~e J.l!<lkial ""Ike "Ii' res..r"n"", ,,8 town- sh.p' pY:.imi"go !\oardf ~4) re.lau""n. wa. b..""d by dOctrines oli res judicata and col, lateral estoppel by resolution of township planning board which prohibited, as a con, aition of site plan approval~ the use of restaurant's second floor for residential purposes; and (5) restaurant was not enti- tled to variance to provide sleeping accom- modations for the employees. Affirmed, f""", 2. Municipal Corporations €=:>63.1(2) Initially, when reviewing a decision of a municipal agency the trial court should recognize that the Legislature has vested discretion. in the municipal agency to make that decision. ." 3. Zoning and Planning =618, 621 Public bodies, such as zoning board, beeause of their peculiar knowledge of 10' cal conditions, should. be allowed wide lati- tude in tile exereise of their delegated dis. ere,tion>;. rreviewJngeourt should: n(Jot substi- lute- ils, judgment f..r tna! of the zoning bOard, 4'~ Zoning and Planning ~678 Action of zoning board of adjustment in denying a variance is entitled to custom- ary judi€ial presumption of validity, 5. Zoning and Planning ~676 It is presumed that zoning board, as well aS0ther municipal agencies, act fai'r.Iy and! with proper motives and for valid' rea. Sons. f}LZ'o-nirig and: !,)lanni'ng, ~74S., 74(i On appeal; from tria-I, court review of zoning&oard decision, appe:Hate' COtu:t is bound by the same scope of review a~ trial €€J;urt and:al'~pelkite cou.r.t gives deference f0;. nlunieipatity's uroad discretion and re- verses only if it finds the municirial action to be arbitrary, capricious, Or unreason- able, 7. Zoning and Planning ~30J Each accessory use case should he de- termined on the basis of its OWn particular facts and question of an accessory use should be considered in the context of the provision of local zoning ordinance. ~ ~ .20 N, J, 495 ATLANTIC REPAR, 2d SERIES 8. Zoning and Planning ~301 Zoning ordinances which permit "cus- tomarily incidental" accessory uses to the main activity permit, by implication, any use that logic and reason dictate are neces- sary or expected in conjunction with the principal use of the property. See publication Words and Phrases for other judicial constructions and definitions. 9. Zoning and Planning ~301 Word "incidental" as employed in defi~ nition of "accessory use" .in land use ordi- nance means that the use must be one which is subordinate and minor in signifi- cance and must also incorporate the con- cept of reasonable relationship with the primary use; it is not enough that the use be subordinate but the use must also be attendant O'r'concomitant. See pu.blication Words and Phrases for other judicial constructions and definitions. to. Zoning and Planning €::=>301 For purposes of land use ordinance, an 'lincidental use" is one that relates to a business, trade, profession, or occupation in general and not specifically to the use which is peculiar to the applicant. See publication Words and Phrases for other judicial constructions ' and def'inilions. U. Zoniing and Planning €::=>3o.2 For purposes of determining whether restaurant located in zoned district which did not permit resid'ential use, was' entitled to', provide slcephlg accommodations for six empfoyees on basis of accessory use under land useo.rdinance, restaur-lnt fai'led to prove that providing the: employees sleep- ing quarters on the premises was reason- ably related" or incidental to the operation of the restaurant where restaurant pror fered testimony directed mainly to its own operation and policy of providing key em- ployees slee(}ing accommodations in restau- rants and not to incidental uses prevailing generally in the restaurant business. 12, Zoning and Planning '"'"301 Word "customarily" as employed in definition of "accessory use" in land use ordinance means that the use must be scru. tinized to determine whether it has com. monly, habitually, and by long practice Leen established, as reasonably associated with the primary use. 13. Zoning and Planning <P302 Restaurant located in zoned district which did not' permit residential use was not entitled to provide sleepingaccommoda- tions for six employees on' basis of accesso. ry use under land use' ordinance where providing employees sleeping quarters on the premises of a restaurant was not rea~ sonably related or incidental to the opera. tion of a restaurant under present-day standards. 14. Zoning and Planning <P359 Township zoning board of adjustment was authorized to take judicial notice of resolution of township planning board. Rules of Evid" N,J,S,A, 2A:84A, Rule 9(2)(a, d), 15. Evidence <P5I In determining propriety of taking ju, dicial notice of a matter, any source of relevant information, may be consulted or used, Rules of Evid" N,J,S,A, 2A:84A, Rule IO(2)(a), 16. Zoning and: Planning; <P359' A board of adjustment is a quasi.judi~ cial body empowered to take judicial notice of matters when and where appropriate; 17. Jud'gnlent 12=6:l4 "Res judicata" as a prineiple of law bars a party from reHtigating a seeond time that which was previously fairly liti- gated and finally determined; general' re- quirements for the invocation of the princi- ple are a final judgment by' a court Or tribunal of competent jurisdiction, identity of issues, parties, cause of action, and thin~ sued for. See publication Words and Phrases ror other judicial constructions and definitions. CHARLIE BROWN OF C~HAM v, BOARD OF ADJUST, N,J, 1~ Cite as 495 A.2d 119 (N.J.Super.A.D. 1985) particular location for which the variance is sought. N ,J ,S,A, 40:55D-70d, 18. Judgment =720 "Collateral estoppel" is that branch of the broader law of res judicata which bars relitigation of any. issue or fact actually determined in. a prior action, generally be- tween the same parties while involving a different claim or cause of action. See publication Words and Phrases for other judicial constructions and definitions. 19. Judgment =641 Principles of res judicata and collateral estoppel are applicable not only to parties in courts of law but also in administrative tribunals and agency hearings. 20. Zoning and Planning <8=>461 Restaurant located in zoned district prohibiting residential use which sought township zoning board of adjustment ap. proval of application to provide sleeping accommodations for six employees was bound under doctrines of res judicata and collateral estoppel by prior resolution of township planning board which prohibited, as a condition of site plan approval, the use of restaurant's second floor apartments for residential purposes. 21. Zoning and Pl'anning cg:::.490 "Special. reasons" for recommending a vaFiance from. restrictions ora zoning ordi- nance may be, based' solely upon "general' welfare" provisions of' variance statute, N,J,S,A, 40:550'-70<1, uses which serve the general welfare are an Hinberenttybenefi~ da!" use custoinarllY of a.quasi~pubtie. na:~ ture and a use which seFves the publi€ to some degree, but not. inherently so'. See publicatiol1',Wor-ds and! Phrases for other judieial; cons~f'uctions and; dcfi:nilions. 22. Zoning and ptanning cg:::.4',90' For .purposes of. determining whetl'1cr "special reasons" exist to recommend a variance fromrestricti:ons of a zoning ordi~ nance, where the use is not of the type which of itself provides special reasons, such as a school or hospital, there must be a finding that the general welfare is served because the use is peculiarly fit for the 23. Zoning and Planning ~539 Restaurant located in zoned district which did not permit residential use failed to show a special reason for variance to provide sleeping aecommodations for six employees, even though it claimed it was more economical to house its key employ~ ees on the second floor over the restaurant than to provide separate housing facilities. N,J,S,A,40:55D-70d, Frank T. Swain, Westfield, for plaintiff~ appellant. Carl R, Woodward, III, Chatham, for dc. fendant~respondent (Bozoneli!:;, Staehle & Woodward,Chlltham, attorne:-;s: Carl R. Woodward, IB, Chathai'll, on brien. Before Judges KING, DEIGHAN and BILDER, The opinion of the court was delivered by DEIGHAN, J,A,\), Plaintiff, Charlie Brown of Chatham, Inc, (Charl'ie Brown), filed an action in lieu of prerogative writs from .a denia~b.~' the Zon- ing Board of Adjustment of the Township of Chatham (Zoning Board) of its applica. tion te pFovide sleeping accommodations for six of its employees on the :-;cco.nd floor of its r;estauranL Application was made on the basis of an. accessory use under the Municiip.al Land Use Ordinance and fora. v(i:ri-ance for special reasons pursuant to N,J,S,A, 40:55D-70d, On appeal. the Supc' rio-r Cour:t, Law Division affin'Hcd the ac- tion of the Zoning' Board'_ On this appeal' plaintiff contends that: (1) the pr0vision for ~leeJ.linJ.; quarters for '!:w~ lectcd restaurant elnpl,oyee~ is all acce~s()ry use to permitted re~taurant oJlcration in the huginc~s lone proscrihing resid(:ntial, uses under the Land Use Ordinanec (LUO); (2) the Zoning Board impl'operly took judi- cial notice of prior proccedings of the Plan~ ning Board of the Township of Chatham respecting plaintiff's property; (:{) plaintiff (a) established special reason and (b) salis. ~. 1 'N,J, 495 ATlANTIC REPOR1~ 2d SERIES Cicd the negative criteria for a use variance pursuant to N.J,S.A, 40:55D-70d, and (4) the Zoning Board in denying plaintiff's ap* plication was arbitrary, capricious and un. reasonable. We disagree and affirm. Plaintiff is the tenant and operator of a restaurant known as Charlie Brown located at 522 Southern Boulevard. Township of Chatham. The restaurant is located in a B (Neighborhood Business) Di:.;trict under the LUO, Section 703, 1 (c) of the LUO permiL, restaurants in the B District I'in which patrons seated at tables or counters are served food and drink." It does not permit residential use. Section 70:1.2 (Permitted Accessory Use) of the LUa permits signs, off-street parking and "other accessory uses customarily incident to the uses listed in Section 703,1." [IJ Accessory use is defined as "fa] use naturally and normally incident and subor- dinate to the, principal use of a structure Or lot, but not including any outdoor storage prohihited by Section 70;',16," The LUO in Section 70:),8 provides: ''[w]:here a use is not specifically permitted in a zone district, it. is, prohibited." Inasmuch as residential uses are' prohibited in the B District, the mixed residential~commerciaf use is [Jrohib- ited, unless the dormitory use falls within the definition of "accessory use_" :rfaintiff' leased the premises and-com- menc~d extensive renovations f)l:.lrsuant to, a' preliminary and final site plan approval ~ranted by ,the Pfaflning Board: of the ']'....nshil! of Chatham by a resolution of July 19" 1932. Site I'r~1l approval was eon, di:tjQh'ak "Preliminary fioaF site plan ap- fn'Qval is,' herehy, gra.nted 01>1 the ,~xpressed: c6nd:ition that the second fl'oor apartment..'4 shaH not be used, or occup,ied as a resi- dential unit or for residential bus~liless'," On October 28, 1982, pl;,intiff applied to Martin J.Eg-aa, construction official oCthe Township, for permission to-provide sleep. iog accommodations for not more than six of the restaurant personnd on the second floor of the restaurant premises. On. No- vember 1, 1982, Egan responded that Arti- cle 70:1.I and Article 703,2 of the LUO did not permit mixed uses and that the Plan~ ning Board resolution approving the site plan specifically prohibited such use. On December 3, 1982, plaintiff appe,l/ed to the Zoning Board pursuant to N.J.S:A, 40:55D- 70a, The Charlie Brown chain of restaurants has a management policy of providing sl<!eping accommodations for it.,,> key em- ployees as part of its overaJl compensation program. Accommodations in connection with the various restaurants may be either on-premises or off.premises depending upon the facility and the 7.oning restrictions in the particular community. Plaintiff's witnesses described the key employees as principally orientals who come from New York, work at the specific restaurant loca- tion and return to New York during days off. This policy enables the plaintiff to attract and maintain a high-quality kitchen staff. A nousein the nearhy<;:onlliHunity of New Providence has presently been rented for $700 per month to house these employ- ees who. are then driven between the two locations as their schedules require. The principal reaSOn for using the second floor of thesubject premises was one ofeconorn. ic convenience for the plaintiff, Jeffrey Back, president of Charlie Brown Restaurants", New Jersey Division, who qualified; as, a restaurant industry expert, testified at length as t", the benefits con, nected with p,roviding sl'eeping a~eo[nmoda~ tio'ns fOF,emp-foyees',. He (wmpared the ac~ eOnlmodations with those of a ski resort. PbtintiflTalso'p:t:esen€ed a planning ex:. pere,J'eYI'Il'A!. Mfad'cl'en'~ J~li~ who testified that thepradiee oJ provid:~~,gz housing' aCe0t:r:rrm~" dations for restaurant staff was a natura.f and normalaeeessory use in the restaurant business~ This practice., he explained, h.1S' been with us since colonial times when the Owners of restauranL'i ~uld taverns resided 011 the premises. Madden further ex- plained that under the Morris County Mas~ terPlan, the restaurant is located in the commercial center of Chatham known as Hickory Tr<.>e which is surrounded by gar- CHARLIE BROWN OF CHr-'AM v. BOARD OF ADJUST. N,J, 12~ Cltcas495A.2d lt9 (N.J.Supcr.A.D. 1985) deQ. apartment.o:;. He stated that the Mas~ certain employees of the restaurant as an rer Plan stresses the need for a balance accessory use and further denied a u!-;c between availability of housing. and job 10- variance pun;uant to N.J.S.A. 40:55D-70d. cations and noted that there was no mini- mal multi~housing available within Chat- ham "ownship, a predominantly single-fam- ily community. Also noted were the pay scale of the employees. the high rents in the area and the lack of convenient mass tnmsit. Theodore Rubnowski, an architect who has worked. for the Charlie Brown chain of restaurants, testified that accommodations have been provided in the past in older building~ where ren0\7ations have been made. However, no new restaurant struc- ture which he has worked on has included accommodations. He abo said that under the New Jersey Uniform Construction Code, restaurant use (A3) falb within the assembly building category while the dor- mitory would fall within the (R2) use group, which is a t'esidential facility for accommodations for more than five and less than twenty individuals. Robert O'Grady, the planner of the Township of Chathani testified in opposi- tion to the plaintiff's application. He stat- ed that he was the draftsman of the Munic, ipatLand Use Ordinance, He noted that both the LUO and th~ Township Master Plan make a clear distinction between resi~ dential and commerciali uses in the area. No residential uses arc permitted: in the business. disttrict zone except those in con,~ nection withqualiified conditional' uses per~ mitted under the ordinance; The only Fesi~ dential uses are those specifieaHy essential to secudty maintenance or, emergency functions, i.e.; nurses, security guards, and the like. None of these are connected in any way with the operation of restaurants. O'Grady was of the opinion that there was a trend away. from mixed uses because of the difficulty in monitoring and enforcing applicable land use and health standards, The Zoning Board affirmed the decision of the construction official denying the plaintiff permission to use the second floor of the premises as Rleepin~ quarters for [2-5] Initially. when reviewing a deci- sion of a municipal agency the trial court must recog-nize that the Legislature has vest- ed discretion in the municipal agency to make that decision, Booth v, Bd, of Adj.. flocka, way Tp" ;;0 N,.J. 302, 306, 234 A. 2d G81 (19G7), Public bodies, such as the Zoning Board here, . because of their peculiar knowledge of local conditions, must be al- lowed wide latitude in the exercise of their delegated discretion, ld, at 306, 234 A,2d 681. The reviewing court may not substi- tuteits judgment for that of thc7.0ning board, Krame'r 11, Bd, of Adjust" Sea Girt, 45 N..!, 268, 29G, 212 A,2d 153 (19G51; [(en, wood Assocs, 11, Bd, of Adj. Englewood, 141 N.J.Super, 1,4,357 A,2d 55 (App,Div, 1976), The action of the board of adjust- ment in denying a variance is elititled to the customary judicial presumption of va- tidity, Kramer at 2HG, 212 A,2d I';:,; f(es, "ler 11, Bowker, 174 N..rSuper, 478, 48G, 417 A.2d 84 (App,Div,l!179), certif. den, 8;; N..!, 99, 425 A.2d 2G4 (1980), It is pre, sumed that the zonin~ board, as well as other municipal agencies, act "fairly and with proper motives and for valid reasons_" Kramer 45 N..!, at 2!IG, 212 A,2d 1;,;" [6,}: On appear, an appellate courl i::. bound by the same !->cope of reyic\\'. I l gives deference to the muni€ipalily's broad discretion and reverses only if it finds the municipal action to he. arbitrary, capricious or unreasonable. Shell Oil Co. 1'. Zoniu(J !Jd, of Adi Sltrcl<wbwry, G4 N..!. ;\;l4, :Hli A-.2d 5 (1~l74). rev'K~on dis$cntin~ op. 1~7 N..!,Sul'er, (;0, GG, :lHi A,2d 64 (App,Div, [!17:l); !Jootlt 50 N..!, at :lOG, 2:14 ,,\.2d li81. As. succinctly summarized. in f( ra NIt' r, su- I'ra 45 N..!, at 29G-2!l7, 212 A,2d l,,:l: Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they ex- ercise ,anew the original jurisdiction of such boards or trespass on their adminis- trative work. So long as the power ex- ists to do the act complained of and there ~ l~. N"J. ,-, '1% ATLANTIC REPOR1 : 2d SERIES Ii-> :::;uh~tantial cviden<.'e to ;;UpPOl't it, the judicial brand] of thegovcrnmenl cannot interfere. A. local zoning determination will be set aside only when it is arbitrary. capricious or unreasonable. Even when doubt is' entertained ag to the wisdom of the action, or as to some part of it, there: can be nojurlicial declaration of invalidity in the absenccof clear abuse of discre. tion by the public agencicsinvolved. The resolution of the Zoning Board in denying the use of the second floor of the restaurant for sleeping quarters for <:ertain employees concluded: 2. The propos<...d use of the second floor of the subj(~d premises does not constitute a use naturally and normally incident and subordinate to the prindpal llse or cllstomarily incident to sllch use. The B (Neighborhood l1usincss) District does not permit any rc~idential uses as indicat(~d by Sections 7();J.l and 705.8 of the Ordinance. Section 70;").8 specifically provides 11where a use is !lfJt specifically permitted ina zone district, it is prohibit- ed." Accordingly, there appears a clear intention to prevent mixed business and residential uses in the particular zone. (7] Factually, this is a unique case; no case has been found on point; this is not unusual in an accessory use matter where each case must be determined: on the basis of its own particular facts'. Newark t'. Daly, 85 N.J,S'up'w, 555, 560, 205 A,2d 45H (App,Div, 1964}, aH'd 46 N.!, 48, 214 A.2d 410 (1965)' See 2 Rathkopf, The Law of Zoning and Ptannin,'1, S 23,05 at 2:3-31 ("t>dated to 3/1985), and Anderson, Ameri~ can Law oj Zoning, * 9,3!) at 72 (2d cd, CUH1.s:Upp.1984) whereruhngs on specific accessory uses arc listed. Further, the' question of an accessory use must be con- sidered in the context of the provision of the local zoning ordinance. Booth, supra, 50 N..!, at 305, 305, 234 A,2d (i81 (1967), See Rathkop.f, sUI/ra, * 2:3.03 at 23-22, Here, four sections of the LUO are in- volved: (I) section 703,I(c) of the LUa per, mits restaurants in the B District; (2) sec- tion 70:~.2 permits other accessory uses cus- tomarily incidental to the uses listed in section 703.1; (3) where a use is not permit- ted in a zone district, it is prohibited, sec- tion 705.8, and, (4) accessory uses are de- fined under definitions in Article II as those uses naturally and normally inciden- tal and subordinate to the principal use of a structure. In State v, P. 1'. & L, Construction Co" hlC" 77 N..!. 20, 26-27, 389 A,2d 448 (1978), ,J udge Conford (temporarily assigned) col- lated and analyzed the cases on accessory use and succinctly summarized the law: In analyz.ing whether a use is custom- arily incident to the permitted use; two determinations must be made. The first is whether the use is incidental to the . main use: does the use H" .. .. bear a close resemblance and obvious relation to the main use to which the. premises are put"? HonigJeld v, Byrne,., 14 N..!. 600, (;06 [10:3 A.2d 598] (1954): see Booth v, Ejd, oj Adju,st, oj Rockaway Twp" 50 N..!. 302 [2:34 A,2d 681J (1967): United Adt'eTtising Corp. v. Mctuchen, 42 N.J. I [198 A,2d 447] (1964); Dolan v, DeCa- pua, 13 N.J,Super, 500 [80 A,2d 655] (Law Div,1951); DeBenedetti ", Twp. oj River Va.te, 21 N./Super" 430 [91 A,2d 353] (App,Div,I952); [(eller v, Westfield, 39 N..J.Super" 430 [121 A.2d 419] (API" Div, 1956), Second, it mU$t be deter. mined whether a use which is found to be incident to the permitted use is arso a customary use. See. Newark v~ Daly, 85 N.J,Super" 555 [205 A,2d 459] (App,Div, 1964), aff'd 46 N.,A 48 [214 A,2d 410] (1965), Generally, a use which is so nec' essary or commonly to be expected that it cannot be supposed that the ordinance wasintend'ed to prevent it will be fbund to be customary use. Chatham-v. Don- aldson, 69 N.,ASuper, 277, 282 [174 A.2d 213] (App,Div,1961); Nortltvate v, Blun- do, 85 N.J,Super, 56, 60 [203 A.2d 721] (App,Div,1964); see Wright v, Vogt, 7 N.J, I [80 A,2d 108J (1951), The fact that a use is not customarily indulged in, how- ever, is not conclusive, and even if the use in question is found in a small per- CHARLIE BROWN OF CUr-AM v, BOARD OF ADJUST, N,,J, 12~, CUe as 495 A.2d f ,-J (N.J$U(lcr.A.U. l<)gS) centage of similar main uses, the use room equipped to operate as an integral .may ;;;till be found to be ;'Customary". part of a husiness. Neu'a.rk 1'. Daly, supra. 8)) N.J. Super. at 560-;,(il [205 A.2d 4!)!)]; fiee Skinner 'Ii, Board oj Adjust. of CherI' .II Hill, HO N..!, Super, 380 [193 A,2d H611 (APILDiv, 196:l), Applying the above analysis to the facts in the present matter, the llropo~wd use may well have been incidental to the main use. According to the- proofs before the Zoning Board, of the 15 Charlie Brown Restaurants in New .Jersey. sleeping ae- commodations ._are provided on-premises in only sc\"cn of the restaurants. F'urthcr, in only four of these circumstances is the use permitted by zoning ordinancc:-;. Thc rc- maining are pre-existing- nonconformin~ uses. [8] Zoningordinancc:-; which pcrmit "customarily incidental" accessory uses to the main . activity permit, by implication, any use that logic and rca:-;ondictatc arc necessary or expected in conjunction with the principal- use of the property. G J)ow- all, La/<' of Renl Property, (l!179) ~ 869[2][eJ, The law ifi not difficult to re. cite but difficult to,apply" e,g" in N"wnrk 'Ii, Daly, Sl~pra, a singlecoin~operated milk- vending machine in the basement of a 400- family high.rise apartinent house for use of tenants did not violate <tzoningordinance which limited the use of property in a resi. dential district to multiple d,wellingo and hotels, On the other "and, a commercial cleaner with. a depot manned by..:t pcrsonitt the basement. of a multi. unit._ huilding'" apartment where clothing to he deancd! could be deposited, was held to eunsti,tutc a business within. the prohibition of the zon- ing ordinanceafld was not an a(~-ce:-;sory use to tne multiple dwelling, Moreover, plain- tiff did: not shew speeiat reasons authoriz~ ing the grant of a variance. Zahnv. New~ a,rk Bd, of Adj" 45 N..!,Su)!er, 516, 1:l3 A. 2d 358 (App,Div,1957), The cases are dis, tinguishable in that Daly was an innocuou:-; milking-vending machine, whereas in Zahn, the operation was mann(~dbya person in a 191 The word "incidental" as employed ina dc1inilion of "accessory use" incorpo- rates two cOllcept...... It means that the use rnugt he one which is subordinate and mi- nor in gignificance. It must also intorpo- ratt.l the concept of reasonable relationship with the primary use. I t is not enoug-h that the usc be subordinate~ it must also be attendant or con('omitant. To ignore thi~ laUeI' aspect of "incidental" would be to permit any use which i;.; not primary, no matter how unrelated it is to the primary u~c. !,awrellw 1'.. Zouitt.Q Rd. 0/ Ap. 0/ TOINI (~/ North Branj()rd, 1;)8 Conn. 509, ;'12-;'1:1, 2(;4 A,2d 5;;2, ;'54 (Sup,Ct.19(;!)); accord Gray 1'_ Ward, 74 llh.'u'.2d;")f), ,1.1-55, :Wl N. Y,S,2d 74!l (Sup,Cl.197;\), aff'd 44 A.[),2d ;,!)7, :1;'4 iV, Y.S,2d ;;91 (..\pp,Div, l!I74), [10, III All incidental use is one that l.eJate:-; to a:bu$incs;.;, trade, profession or occupat.ion in g-eneral and not specifically to the use which is peculiar to the appli- cant. Here, plaintiff proffered the testimo- ny directed mainly, if !lot exclu~i\'el::, to its ow n operation and policy and not to inci- dental' uses prevailing g-eneraHyin the res- t.wrant busincRs. 01'1' the proofs present. cd, t.he record does 1l0~ reflect, nor has p-bintiff prOVCl'l, that providing' employees slcepinJ.{ quarters on the pt'cmises of a res. taurant is. reasonablyreI'ated or incidental to the. operation: of a restaurant under present day. :-;t<indards, t 121 r~'he: w~wd. H€u!:;tomariIy" is even ru:on~djfficult to appfy. CO\:l:rLS h<t\'c 0.ftCrI 1-lf~I'~l that uscof d'H~':' word "'custOlnari{y'; phicesa (tuty on the board or court to determine whethc'r' it is u::;ual to maintain the use in question in connection with th{~ primary use. The use must be further scrutinized to determine whether it has commonly, habitually and by long- practice been cslablishedas r{~asonably associatcd with the primary use. Lawrencc,sup'ra 158 Conn. at 512-1:~, 2fi4 A.2d at 554. ,."..., . N,.), 495 ATLANTIC R~;P()R~ 2d SERmS [13J Theodore Budnowski, plaintiff's ar' chi teet, testified .tbat oll*premisc aCCOlnmo- dations were found only in connection with some older rcstc1.urants but that newer structures routinely do not provide such accommodations. This observation is sup- ported by Robert O'Grady, planner for the Township. He testified to the undesirabili- ty of mixed uses in general and the intent of the LUO which he drafted specifically concerning mixed uses in particular. These reasons are also set forth in his written report of April 7, 198:J, introduced as an exhibit in the. hearing before the Zoning Board, Indeed, it may be, that it was not uncommon, particularly in family-type res- taurant operations, that the family or per- haps employees, on occasion lived on the restaurant premises. However, sleeping quarters for employees in restaurants, as an accessory use in the present era, has not been established by plaintiff. 'fhe Zoning Board adopted the following conclusion concerning a prior resolution of the Planning Board inVOlving the same pre- mise on approval of the site plan application by plaintiff: :J. The Board also finds that notwith. standing the issue of acces!>ory use that the Resolution of the Planning Board specifically prohibited, as a condition of Site Plan Approval, use of the second floor premises for a residential. purpose. Inasmuch as the applicant did not appeal this deCision, and indeed acknowledged by its counsel that should it desire to use the second floor for a dormitory that it would: seek a variance, it has waived its right to claim that it is entitled to an accessory use. Plaintiff itself referred to the Planning Boal7d resolution in it." application to the Zoning Boal7d and the resolution was also referred to by the construction official in his letter of November I, 1982 denying plaintiff's request for an accessory use. This denial of course was the subject of the appeal to the Zoning Board, Plaintiff's contention that this was erroneous is re- jected, Initially, it is ludicrous to contend that the construction official, who is charged with the enforcement of the zoning ordi- nance and issuance of permits, must ignore the condition upon which the site plan was granted_ This was the very core of the denial of the application for the accessory use and was not only relevant but essential in the determination by the construction officer. It is the springboard of his deci. sion which gave rise to plaintiff's applica. tion and as such is an integral part of the proceeding. [l4.15J Second, the Zoning Board was authorized to take judicial notice of the resolution of the Planning Board under 8vid,fl. 9(2)(a), which permits judicial no, tice of ~'_ . _ determinations of governmen- tal subdivisions or agencies ... of this State" and subsection (d) which states, "such facts as are so generally known or of such common notoriety within the area per- tinent to the event that they cannot rea~on- ably be subject of dispute," The Planning- Board does not enact ordinances and its determinations are promulgated by way of resolutions. In determining the propriety of taking judicial notice of the matter, any source of relevant information may be con- sulted or used, Evid,R, 10(2)(a), [lEiJ A Board of Adjustment as a qua.,i .judicial body is empowered to take judicial notice of matters when and where appropri- ate, The standard to he applied was set forth in lleinaue-r Realty Corp. v. Nucc1-a, 59 N.J,Supe>', 189, 203, 157 A.2d 524 (Ap[l, Div, 1960): Although it must be recognized that gen- erally matters dehors the record, of which a board of adjustmenthasknowl- edge or takes official notice, must be made a part of the record in order to afford the applicant a fair opportunity of refutation _ _ ., it does not follow that in every instance such matters upon which the board relies in weighing the evidence and reaching a reasoned conclusion must be so spread upon the record. Where matters so recognized and employed in reachinga conclusion are of such a self- CHARLIE BROWN OF (~HAM v. 1l0AIW OF ADJUST, N"J. l~, CUe",s,495A.~...119.(N.J.Sul)Cr.A.l>. t985) evident nature that it is beyond debate the express condition that second floor ..'" that they could not be rehutted or contra- apartments would not be used or occupied dieted there is no necessity to accord an as a residential unit or for residential pur- applicant such an opportunity. [Ciuf- pose. The resolution of the Planning tions omitted]. Board was a determination by a quasi.judi. In Fobe A.~.<;ociate.'; 'lJ. Mayor & Council cial body which precluded plaintiff from of Demarest, 74 N../, 519, 379 A,2d 31 again submitting the same issue to the (1977), the objection was to the admission Zoning Board, also a quasi-judicial uody, of a resolution of the Planning Board op- for a second determination. The issue was posing a use variance. The Supreme Court determined once and having been so deter- found the Planning Boarrl's resolution to be mined could not be submitted for a second significant. There as here, the plaintiff did determination. not dispute the accuracy of any facts stat- As to the use variance, the Zoning Board ed in the Planning Board's resolution. 1d. concluded: at 542, 379 A.2d 31. Here, plaintiff W<l:i 5. Applicant has further not sus~ aware of the resolution long- before it was tained the burden of proving ~pecial rea- admitted into evidence. sons under N.J.SA. 40:55D-70d, because [17. 18] Third, plaintiff is bound by the there has been no showing of undue resolution of the Planning Board prohibit- hardship or that the use of the property ing. as a condition of site plan approval, the for residential purposes would advance use of the second floor for residential pur. any of the purpose of zoning as set forth poses by the doctrines of res ju.dh:ata and in the State Land Use Law. collateral estoppel. R(~sjudicala as a prin- Plaintiff advanced as $pecial reasons for ciple of law bars a party from relitigating a the grant of a use variance: second time that which was previously fair. 1. The limited employee llollsing OCCll- Iy litigated and finally determined. The pancy will promote increased security for general requirement..... for the invocation of the restaurant. the principle are a final judgment by a 2. The general welfare of the commu- court or tribunal of competent jurisdiction, nily is s.crvedbecause the employee identity of issues, parties. cause of action housing- occupancy will promote security and thing sued for. City of Hacke1l.';a.ck I'. for the commercial Hickory Tre<: Cent<:r. Winner, 162 N.J,S"l,er, I, 27~2&, 3~2 A,2d Neither of these reasons is valid. 1&7 (App,Oiv,197&), mod, &2 N..J. 1, 410 A. 2d 1146 (19&0), Conateral estOppel is lhat branch of the broad'er.law of :res judicQ.lCr which bars relitigation of any issue or fad actual'Iy determined in a prior action, ~en. erally between the same parties while' in- volving a different claim oreausc ofll;cti~ln,. 162 N.J,Super, at 28, 3~l2 A,:M 1&7, The terms are sometimes u'sed inlerdmng:eabty and applied broadly, Id, (19. 201 The principles of res judicata ;\nd coIlateral: estoppelareappl'ieahle not only to the parties in courts of law, but also in administrative tribunals and agency hearings, Id, 162 N.J,Super, at 24, a!)2 A, 2d 187; 2 Restatement, .Ju.dgments 2d, ~ &a(l) (I!l&O), Here, plaintiff obtained sile plan approval from the Planning Board Oil In order to obtain a use variance under N.J.S.A. 40:5fiD-70d,an applicant mU5t prove that: "(l) 'special reasons' exist for the variance,and (2) that the variance "can be granted without. ~uhstantial dctrim<:nt to puhlic good and will not~ubstanhally impair theilltent and purpose of a zoning plaH and the zoning- ordinanee.'" Kohl 'lJc M(tyor &- Cout/,eil of FhiT Lawn, fiO N../. 21;8, 2%, 2M A,2d 'IS;' (1%7); Kessler /I, lJowke'r. supra, 174 N..I.Suller. at 48[), 417 A.2d :14, (211 Andrews. v. Ocean Twp. Board of Adjustment, :10 N.,!. 245, 152 A.2d ;'&0 (H)59), originated the doctrine that "special reasons" for recommending a variance from restrictions of a zoning ordinance 128 N, ,I. ,,,-..,, ,195 ATLANTIC REPOI{TER. 2d SER~, may be based solely upon the criteria S(~t forth in the"general welfare" provisions of N.J.S.A, 40:53-:l2, See [{essler v, Bow/",,", supra. Uses which serve the general wel- fare are generally one of two type", (1) the "inherently beneficia'" use customa-rily of a quasi-public nature and (2) a use which serves the public to some degree, but not inherently so. Examples of inherently ben- eficial m.,es are found in Black /J. Monl- cl"ir, 34 N.J, 105, 167 A,2d :188 (1961) (Expansion of school buildings); A 'Ild'rews 1'. Ocean Twp. Board of Adju.<;lrnent, su- pra (Parochial school): Bo'rou,qh of Ro,,,,Ue Pic, v, Tp, of Union, lla N../,Sup<<r, 87, 272 A,2d 762 (Law Div,]970l (Non.profit I(OV' ernmentaHy fimmi.:ed senior citizens' hom~.- ing project); Bon,wtl/ ", Tp, 0;' Mend/1ft"', U6 N.J.Sul>er, 337,282 .4,2d 410 (App,Div, ]971), cerM, den, 59 N.J, 529, 284 A,2d 3M (197]) (A seeing-eye dog facility); Kunzler 'V, HojJma,n, 48 N.J. 277, 225 A,2d :321 (1966) (Hospital for emotionally disturbed adults and children); DeSimone '/I. Greater E'n,qlewood Housing Corp, No, I, 56 N..J, 428, 267 .4,2d 31 (UnO) (Semi.public low and rnoderatp- housing- for minority or un- derprivileged segments. of the pupulation); Wiclcal1tnlc Village ", Tp, of Marlboro, ]]8 N,J.Super, 445, 288 A.2" 3(}8 (Cl\,Div,]972) (Sewage treatment plant), [22'}. Previous cas(,.~ in which a::;ignificant factor was the contribution of the proposed use' ~f theHgenei;~~!wetfare'" Q-f'the:€ommu'- n~ty have an in~olved! u~es which, i'ft!tere1~UM served the paMic good" Kohl '" MallO' &: Council ofF"aid(JJw", supn" 50 N,j( at 279, 234 A,2d! 385. Where the use is not of the tyt)e- \\(hi€n0tJ i,ft.<;~J,ffp,mvides special rea- S~H1S"~ :s~eh as; a sd~~)ot ~nt hospital', there mUSE @~ a Bhui;lng tnat the' generaL welfare is served because tf.te use is peculiarly fit for theparticul'ar location for which the variance is s0ug:ht lHid!. This, is so' be~ cause nearly all lawful uses of property promote, in greater or lesser degr.ee, the general welfare, ld, at 280, 284 A,2d 385, [231 There is no question hut that ['lain" tiff's property can be put to its zoned use, see Cerdcl Constr. Co., Inc. .v. East Hano- ""r Tp" Bo N..J. 303, 006, 4,lQ A,2d 925 (U)81), but the essence of plaintiff's posi. tion is that it is more economical for plaintiff to house its key employees on the second floor over the restaurant than to provine separate housin~ facilities. This does not satisfy the affirmative require- ment of special reason under N.J.S.A. 40:f.i5D-70a; Kcnwood As.'iocs. Ed. of A((j. gnfllcwood, 14] NJ.Supcr, I, 5, %7 A,2d [,5 (App.Div.197(j). Special circumstances are not estahlisb~;~d by a showing that the proposed use would be more profitable to the owner than the permitted uses. Shell Oil Co. v. Zoning Bd. of Adj. Sh }"('wsbu;ry, 127 N.,!.S1tper, at 60, GG, ,JIG A.2d G4, [11 Jfahler v. Borough of Fair Lau:n, H4 N.J,Sup",", In, 184, 227 A.2d "I I (App, Div.l!)67), aff'd o.b. 55 N..!. 1,2;-)8 A.2d 705 (1969) this court ohserved that: If 'the socia! benefits of any individual use were, on the basi~ of the general welfare concept, to he regarded as an adequate special reason for a (d) use variance, we would have in effect, t.he untoward and clearly unintended conse- quence th~tt variances could Le awarded indiscriminately merely because they did not offend the negative criteria of the statute, Continuing we observed that: In any case, however, the conclusive con- sideration here is that, whether or not the board could properly have rtranled' a variance recommendation in thi...;,; situa- tion, there is utterly no basis for a judi" ('ial conclusion that j't acted arbitrarily, capriciously or unreasonably in exercis- ing its' discretionary qu.asi-judicial po,w- ers by denying such a recommendation. And that is the controlling criterion on judicial' review, whether the board grants or denied a variance. (!)4 N.J.Super. at 185, 227 A.2d :')11]. Accord, Slwll Oil Go., supra. In. the present matter the Zoning Board found that special reason~ had not been established. From our review of the evi. dence we found that this determination was supported by substantial credible evidence . , I"" Flml.lSE v, ~;IU;1l N,,1. 129 Cllcl.s49:;^.ld IZ<J (N.J.Supcr.A.I). 19R.'i) record ;lS a \vhol(,<lnd that. th(' eiently I"cliaok~. l{ulcs of , 1I.v ~upporls the affirmanec of 01(' 2A:R4A, Rule 5()(2). _ani by .Judg-(' Muir. 'd, w o ~K(YflU/ol8[MWSr!M T 202 N;J.Super. 330 C. ""ERLISE and Vincent J. ise. Plaintiffs-Respondents. \', .arles EILER and K &' Supply Corn,puny. J )e~endants-Appellant.s. 'rior Court of New .lcn-.;ey, Appellate Division. Argued May :22, I Y8.!). Decided July 2, I ~IH!;, M Auto :tal injury action was brought ,tck driver who struck car in the car was stopped at an intcrscc- Superior Court, Law Division, .unty. entered judgment in favor 'f, and truck driver appealed. or Court, Appellate Division, Ha. " held that: (I) trial,;udge erred .g plaintiffs thermog'ram results e and (2J it was nolerror to 7<. negJigenceag-ainst truck dviv- led in part, reversed in part, and for retrial as to issue of dam- e €=>508. 555.:~ cnt of expert testimony must e first that the proffered testi- enhance the knowlcdgoc' and iug of lay jurors, with respect to lony of a special nature normal. of the usual lay sphere, and . the expert's testimony is suffi. Evict" N..J.S,A" 2. Evidence ~.555.4( 1) To show that proffereoexpert testimo- ny is sufficiently reliable, the t.echnique or mode of analysis used and testified to' by the expert must have a significant scien- tific ha!-;is to produce uniform and reason- ably reliahle results so as to contribute materially to the ascertainment of the truth, Ruleg of Evid" N"J,S,A" 2A:84A, f{ul(~ 5(;(2). :L Evidence ~555.4( I ) That a test or technique has sufficient scientific basis may be demonstrated by (loeo!' three ways for purposes of showing that proffered expert testimony is suffi~ ciently reliable: expert testimony as to the g-cneralacceptance of the premise being- advanced among those in the profession, authorit.ative scientific and legal writing in. dicating that the premise enjoys general accept.ance in the I)Tofe!:>sional. community; and judicial opinions that indicate that the expert's premise has gained general accept~ ance. Rutes of EVid., N..J.8.A.,2A:84A, Rule [)(i(2). .1. Evidence <2=>1;;0 Before thermogram results. may be ad- mitted in evidence, foundat.ion evidence rnust be proffered regarding compliance with medieany accepted f)FOeedu.res as to pFeoperativeinstructions to- the patient and proper operation of Uw machine. ;-). fo;vidence c3=> 1;-)0 Trial judge erred in adlnjttingplain- tiff's thermogram results in evidence in pers0naIinjury . adion, as there was no showing that specific tcsL~ performed were sufficiently reliable, Rules of Evi<l.., N.J'. S,A" 2A:84A, Rule !;H(2). 6; Automohiles e::::.172(7) I t was not error in personal injury action to allocate. 787-; negligence against truck driver who struck car in the rear \vhile car was stopped at an intersection. A ~ ~ MEMORANDUM TO: FROM: Paul Taddune, City Attorney Bill Drueding, Zoning Enforcement Officer Steve Burstein, Planning Office RE: Brand Building - Use Determination February 3, 1986 DATE: ================================================================ Attached for your review is an application submitted by Andy Hecht on behalf of his client Harley Baldwin, owner of the Brand Building, requesting adetermination by the Planning Commission as to whether or not the owner can offer residential units at the Brand Building to the general public at the same rates as offered to the tenants, if offered first to tenants and not leased by them. Please review this material and return your referral comments to the Planning Office no later than February 17th. Thank you. (} ,,- , , January 24, 1986 Chairman and Members of Planning and Zoning Commission Aspen Planning and Zoning Commission Ci ty Hall 130 South Galena Street Aspen, Colorado 81611 Dear Chairman and Members of Planning and Zoning Commission: I am the owner of certain real property known as the Brand Building. I hereby authorize the firm of Garfield & Hecht, P.C., to represent me in an application for a use determination and other necessary approvals to support the conversion of the second floor of the Brand Building to residential use. Respectfully submitted, By ~ TSaL- H rley Ba dwin f""'\ ~ GARfHlElLD & HJECHT, P.C. RONALD GARFIELD ANDREW V, HECHT AITORNEYS AT LAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN AVENUE ASPEN, COLORADO 81611 WILLIAM K, GUEST, P,C, JEREMY M, BERNSTEIN CLIFTON D, BURDICK January 17, 1986 Chairman and Members of Planning and Zoning Commission Aspen Planning and Zoning Commission Ci ty Hall 130 South Galena Street Aspen, Colorado 81611 Enclosed please find seven (7) copies of the floor plan for the Brand Building and seven (7) copies of the application for change in use for the Brand Building. If you have any further questions, please contact Mr. Andrew V. Hecht. Thank you, ctJ.+Y:::;C Secretary to Andrew V. Hecht AVH/lh Enc. t""'. ( ~ GARfHJELD & HECHT, P.C. RONALD GARFIELD ANDREW V, HECHT ATTORNEYS AT LAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN AVENUE ASPEN, COLORADO 81611 TELEPHONE (303) 925.1936 TELECOPIER (303) 925-3008 CABLE ADDRESS "GARHEC" WILLIAM K, GUEST, P,C, JEREMY M, BERNSTEIN CLIFTON D, BURDICK January 17, 1986 Chairman and Members of Planning and Zoning Commission Aspen Planning and Zoning Commission Ci ty Hall 130 South Galena Street Aspen, Colorado 81611 This is an application for an exemption from compliance with the Growth Management Plan ("GMP") pursuant to section 24-11.2(j) of the Municipal Code of the City of Aspen ("Code"). The applicant, Harley Baldwin, is the owner of the Brand Building ("Building"). He requests permission to change use of a portion of the second floor of the building from office and commercial use to residential use. The balance of the second floor of the building has been used historically as residences. The applicant proposes to use the new residential units created by this change of use as accessory to the other permitted uses in the building as they will be offered for rent first to Tenants in the building and such dwelling units will comprise less than one half b~) of the total floor area of the building. Section 24-11.2(j) of the Code describes the GMP exemption for a change in use. The criteria for reviewing such change in use is "growth impacts.....defined as any activity which results in more ~, ,.-, GAlRfKlEW I< IHlECIHlI, r.c. than a negligible increase in employee housing or parking; generates more than a negligible increase in traffic demand, water and sewer needs, fire and police protection requirements, off-site drainage and road demands; or otherwise requires the provision of more than a negligible increase in governmental services. II The applicant believes that there are no growth impacts associated with the change in use. Respectfully submitted, HARLEY BALDWIN By Garfield & Hecht, P.C. BY:- Andrew ---~~,,- V. Hecht - ^ January 17, 1986 Chairman and Members of Planning and Zoning Commission Aspen Planning and Zoning Commission Ci ty Hall 130 South Galena Street Aspen, Colorado 81611 Dear Chairman and Members of Planning and Zoning Commission: This is a request for a use determination by Harley Baldwin _ owner of the Brand Building. Mr. Baldwin requests determination by the Planning and Zoning Commission that the meaning of the language in Section 24-3.2 of the Municipal Code ("Code") permitting in the CC Zone "dwelling units accessory to other permitted uses...." allows Mr. Baldwin to offer the residential dwelling units first to the tenants of the building and then if they are not leased by the tenants to the general public at the same rates as offered to the tenants. Respectfully submitted, HARLEY BALDWIN By Garfield & Hecht, P.C. BY~~ Andrew V. Hecht , ,-." . ASPEN~PITKIN ,;..-=GIONAL .~ BUILon 'lJIo.... DEPARTMENT D rn @ rn OW rn IT FEB , 4 IS-as U MEMORANDUM TO:' Steve Burstein, Planning Officer W-1~ Bill Drueding, Zoning Officer ' &-/ Date: February 13, 1985 FROM: SUBJECT: Brand BUilding--Use Determination I recentlY,made an inspection of the second floor of the Brand bUilding. There were numerous commercial and office uses plus three (3) dwelling units. It appeared that Some work and addition had been completed on the dwelling units but this department cannot verify that from our records. I would have to consider the three dwelling units historically here in their pres en t form. With the upper level lofts, it appears that the dwellings will comprise more that 1/2 of the total floor area of the bUilding? No current plans of commercial space have been provided. The Smuggler Mine Company does have a mezzanine area. However two of the existing dwelling are multi-levels. This ratio should be verified with calcnlation by the architect. WD: 10 cc: Patsy Newbury Jim Wilson Alan Richman offices: 517 East Hopkins Avenue Aspen, Colorado 81611 303/925-5973 mail address: 506 East Main Street Aspen, Colorado 81611