2005 WL 5279664 (Pa.Cmwlth.) (Appellate Brief) For opinion see 899 A.

2d 399 Briefs and Other Related Documents Commonwealth Court of Pennsylvania. DIOCESE OF ALTOONA-JOHNSTOWN, v. ZONING HEARING BOARD OF THE BOROUGH OF STATE COLLEGE, Donald Hopkins and Mildred Hopkins, Appeal of Donald and Mildred Hopkins. No. 1549 CD 2005. December 7, 2005. Appeal from the Order Dated June 30, 2005 of the Court of Common Pleas of Centre County, Pennsylvania Trial Court Docket No., 2005-929 Appellee's Brief Sullivan, Forr, Stokan & Huff, Shawn P. Sullivan, Esquire, Attorney I.D. # 42167, 1701 5th Avenue, Altoona, Pa 16602, (814) 946-4316, Attorney for Appellee, Diocese of AltoonaJohnstown. *i TABLE OF CONTENTS Table of Citations ... ii I. Summary of Argument ... 1 II. Argument ... 2 III. Conclusion ... 11 *ii TABLE OF CITATIONS CASES Appeal of the Russian Orthodox Church of the Holy Ghost of Ambridge, 397 Pa. 126, 152 A.2d 489 (1959) ... 6 In Re: Upper St. Clair Township Grange No. 2032, 397 Pa. 66, 152 A.2d 768 (1959) ... 3, 7 Southco, Inc., v. Concorde Township, 552 Pa. 66, 713 A.2d 607 (1998) ... 7 Bailey v. Upper Southhampton Township, 690 A.2d 1324 (Pa.Cmwlth.1997) ... 2 Camp Ramah in the Poconos, Inc., v. ZHB of Worcester Township, 743, A.2d 1019 (Pa.Cmwlth. 2000) ... 6 Church of the Savior v. Zoning Hearing Board, 130 Pa. Cmwlth. 542, 568 A.2d 239 (1989) ... 3 Franchi v. ZHB of the Borough of New Brighton, 117 Pa. Cmwlth. 542, 568, A.2d 1336 (1988) ...

9 Noah's Ark v. Zoning Hearing Board, 831 A.2d 756, (Pa. Cmwlth. 2003) ... 3, 5 Robin Coup. V. Board of Sup'rs of Lower Paxton Tp., 17 Pa. Cmwlth. 386, 332 A.2d 841, (1975) ... 2 Rural Route Neighbors v. East Buffalo Township Zoning Hearing Board, ___ Pa. Cmwlth. ___, 870 A.2d 388, (2005) ... 2 Treatise Arden H. And Daren A. Rathkopf, Law of Zoning and Planning 20.03 ... 3 *1 SUMMARY OF ARGUMENT This case really involves the question of what constitutes a church. The Appellants spent a great deal of their argument in quantitative analysis of the size of the various rooms, the name of the facility, and the nature of the population the building is intended to serve. All of this is without any analysis of the nature of the activities that will be performed or the services that will be provided at the building of the Appellee, Diocese of Altoona-Johnstown (Diocese). The record is replete with the Catholic programs that will be provided at the campus ministry center of Diocese. None of this testimony is contradicted. It has always been the underlying principle of all of the prior decisions of the appellate courts of Pennsylvania, that you need to look at the substance of the use to determine if it is consistent with the concept of a church. The Trial Court properly dismissed the analysis offered by the Appellants. The Trial Court accurately captured the essence of a church when it slated a church is defined by the expectations of the people at the building ... A church, of any denomination is devoted to the study of faith. All of the testimony in behalf of the Diocese and from the Borough Zoning Officer, Herman Slaybaugh, support this conclusion. There is no legal reason for this Court to find otherwise.

*2 ARGUMENT

This case comes before the Commonwealth Court as a result of an appeal filed by Appellants, Donald and Mildred Hopkins (Hopkins) challenging the decision of the Court of Common Pleas of Centre County. The lower court (Kistler J.) held that the Zoning Hearing Board of the Borough of State College (ZHB) abused its discretion in denying this Appellee, the Diocese of AltoonaJohnstown (Diocese) approval of the plan to construct a campus ministry center. The Commonwealth Court must now determine whether the Trial Court was correct in its determination the ZHB committed an error of law and an abuse of discretion. An abuse of discretion occurs if ZHB made findings not supported by substantial evidence, i.e. such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Rural Route Neighbors v. East Buffalo Township Zoning Hearing Board, _________ Pa. Cmwlth. ___________, _____________, 870 A.2d 388,391 (2005) (footnote 4); reconsideration and re-argument denied, __________ Pa.Cmwlth. _____________, A.2d __________ (2005); citing Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa.Cmwlth. 1997). Substantial evidence is that which a reasonable man acting reasonably might have

utilized in reaching the decision made. Robin Corp. v. Board of Sup'rs of Lower Paxton Tp., 17 Pa.Cmwlth. 386, 391, 332 A.2d 841, 845 (1975). It is the contention of Diocese that ZHB abused its discretion in the following manners: first, it ignored the concept of church, as defined by the appellate courts of the Commonwealth of Pennsylvania; second, it ignored substantial evidence offered by the *3 Zoning Officer of State College Borough as well as the testimony of Diocese's witnesses as to the use of and function of the property which qualifies the proposed use by Diocese as a church. As to the definition of church, the Zoning Ordinance (Ordinance) of State College has no definition. Therefore, it was the responsibility of the ZHB to rely upon Pennsylvania law. Under Pennsylvania law, the word Church must be afforded its usual and ordinary meaning. In Re: Upper St. Clair Tp., Grange No. 2032, 397 Pa. 66, 152 A.2d 768 (1959); Church of the Savior v. Zoning Hearing Board, 130 Pa.Cmwlth. 542,568 A.2d 1336 (1989). In attempting to define church, the Courts have relied on Black's Law Dictionary where it is defined as an organization for religious purposes or for the public worship of God. In Re: Upper St. Clair, 397 Pa. at ______, 152 A.2d at 771. In the Upper St. Clair case, the court went on to state that [t]he ordinary meaning of the term contemplates a place or edifice consecrated to religious worship, where people join together in some form of public worship. Upper St. Clair, 397 Pa. At 67, 152 A.2d at 771. Further, the concept of church has been accepted as including accessory uses including parochial schools, parking lots and playgrounds, rectories, gymnasiums and swimming pools, boy scout rooms and other places of quasi-public assembly, daycare centers and drug rehabilitation centers. Noah's Ark v. Zoning Hearing Board, 831 A.2d 756, 761 (Pa.Cmwlth. 2003); citing Arden H. and Daren A. Rathkopf, Law of Zoning and Planning 20.03 (Fourth ed. 1985). As to the substantial evidence offered by Diocese, the ZHB ignored the testimony of Herman Slaybaugh, Zoning Officer for State College Borough, that described the building as an ecclesiastical building (RR p. 125a) and that the religious instruction which is an *4 accessory use to a church would be offered at Diocese's building (RR p. 132a). Father Matt Laffey, O.S.B., who currently staffs the campus ministry for the Diocese, testified that the purpose of the building to be constructed by the Diocese is to allow all the attributes of the Catholic religion to be expressed and allow the Catholic students of Penn State University to have a place to practice their faith, to worship and praise God (RR p. 191a), to be used for sacraments and sacramentals which included adorations, stations of the cross, morning and evening prayers, various other devotions, as well as the Sacrament of Reconciliation (RR p. 193a), to allow for the studying of scripture in the Catholic tradition (RR p. 194a), and that the center would be a gathering place for Catholic social clubs such as the Newman Club, Right of Christian Initiation of Adults, Students for Life, Right of Life Charismatic prayer group, Men Seeking God Group, Women Seeking God prayer group, Mission Mexico, Project Haiti, and a Catholic group called SNACK (RR pp. 194a, 195a). Even in its own findings, the ZHB stated that Diocese's building will offer a Catholic library, catholic publications, the display of Catholic artifacts, a place to discuss scriptures from a Catholic viewpoint.... (App. B-p.6 of Hopkins' Brief). All of the described uses are consistent with the functioning of a Catholic church. All of the functions to be conducted by Diocese are part of the ministry of the Roman Catholic Church. Even the description of some of the activities bear the adjective Catholic. It should not be any clearer that what is proposed to be performed at the Diocese's property is the inculcation of Catholic teachings in a Catholic milieu. There could be no clearer case of religious purpose and use than what was presented to the ZHB in this case. *5 Diocese contends that the whole record is replete with sufficient evidence to allow a reasonable person to arrive at the conclusion that this is a church. In fact, no witnesses contested the presentation of the Diocese's witnesses as to the uses of the building proposed by the Diocese. In doing so, ZHB has committed the same error that was committed by the zoning

hearing board in the Noah's Ark case, where the board ignored testimony that the Christian focus of Noah's Ark ... was considered to be part of Second Baptist's ministry. Noah's Ark, 831 A.2d at 759. The ZHB was not satisfied with simply ignoring the uncontradicted testimony as to the use and function of the building but also committed an error of law when it required a minimum use standard which is not part of the ordinance. The ZHB simply looked at the size of the chapel visa-vis the rest of the Diocese's building. Within the ordinance, the only defined proportion between primary and accessory use is under section 1202(a) of the Ordinance which is limited in its application to Pennsylvania State University which is zoned University Planned District. Ascribing a standard for the minimum amount of space required to be applied towards a primary purpose which is not defined in the ordinance is an error of law. In essence, the ZHB has ignored the uncontradicted testimony as to the purpose of the building as a whole, that is for conduction of religiously focused activities. The ZHB has set a new standard by proclaiming that because the chapel, which is the site of actual religious worship, is below a certain proportion of the building as a whole, then the accessory uses, even if religiously focused, do not count towards the overall use of the building. In its attempt to justify its finding and requirements, ZHB relies on two cases. However, neither of these cases aid in the disposition of this matter due to the inapplicability of the two cases when compared with the circumstances of this matter. *6 The first case relied upon by ZHB is Appeal of Russian Orthodox Church of the Holy Ghost of Ambridge, 397 Pa.126, 152 A.2d 489 (1959) (Holy Ghost). This case involves the intent by a church group to justify the opening of a cemetery on a piece of ground not zoned for the purpose. In the Holy Ghost case, the use was impermissible regardless of whether the cemetery would be owned by secular or religious entities. The zoning ordinance in Holy Ghost allowed for religious uses. The issue in the Holy Ghost case was whether the ownership of a cemetery was in and of itself a religious use. The court decided the issue in the negative. Therefore, the Commonwealth Court's decision in that case is correct. In this case, unlike Holy Ghost, the Diocese does not seek to justify its ministry center based upon the nature of the Catholic church, but rather because the Diocese will use the property in a manner which is consistent with the functioning of a church. Even under the Holy Ghost case, if the use would be a religious nature, the proposed use by Holy Ghost would have been acceptable under the applicable ordinance. The second case upon which ZHB incorrectly relies is the case of Camp Ramah in the Poconos, Inc., v The Zoning Hearing Board of Worcester Township, 743 A.2d 1019 (Pa.Cmwlth. 2000). In Camp Ramah the use of the land was as a recreational camp. The daily activities of Camp Ramah were not unlike any other children's day camp. As in Holy Ghost, the focus of judicial inquiry is the nature of the activity rather than the identity of the user. Camp Ramah was not intended to be used solely by members of the religious group which owned the camp. The camp and its facilities would also be available to adult groups and would not be planned or directed by Camp Ramah, but by the groups themselves. In the case at bar, all activities are supervised by and conducted under the auspices of the Diocese *7 and the Benedictine priests who staff it. Thus, Camp Ramah is inapplicable to the situation of Diocese. Next, Diocese contends that ZHB misapplied the holding in Southco, Inc.. v Concorde Township, 552 Pa. 66, 713 A.2d 607 (1998). In Southco, the ordinance under scrutiny defined the attributes of a restaurant. The court analyzed the use in the context of the definition contained in the ordinance. The ordinance required that the restaurant be devoted to the sale and consumption of food and beverages .... Southco, 552 Pa. at 72, 713 A.2d at 610 (emphasis added). The court further analyzed the meaning of devoted and noted that it does not connote

exclusivity... Southco, 552 Pa. at 72, 713 A.2d at 610. In order to make its analysis, the court looked at the testimony which showed the percentage of use between the desired restaurant and the wagering portion of the building. In this case, it was unnecessary for the ZHB to conduct the Southco analysis because church, as defined by the courts, necessarily includes accessory uses as presented by Diocese. Upper St. Clair, 397 Pa. at _____, 152 A.2d at 770. This is common to any church. In fact, the Borough Zoning Officer testified that ... local churches often provide a wide range of activities beyond worship and are constructed with the extra space needed to support that (sic) activities. (RR p. 136a). In none of the cases cited by Hopkins is there any statement by any court that there must be a minimum proportioned use of the structure which is dedicated to religious services in comparison with the rest of structure employed for other activities. Diocese contends that in recognizing such accessory church uses as schools, playgrounds, and residency for clergy, that the courts understand that the actual portion of *8 the structure devoted to church may be proportionally smaller than the rest of the structure employed for other accepted accessory activities. The Hopkins attempt to confuse the Court by using standards published by the United States Conference of Catholic Bishops (USCCB) to prove that the design of the building does not conform to the design of a Catholic church as suggested by the USCCB. Firstly, this ignores the primary purpose of the building as a Campus Ministry Center where more Catholic activities and just the celebration of a Catholic Mass will occur. Secondly, nothing in the USCCB publication dictates the dimensions of the various part of a Catholic church. Although Hopkins quote the conclusion that the document provides guidelines for the building of a church, Hopkins ignore the spirit of the document which further states that the primary role of a church building is to [provide] a suitable place for the celebration of the Liturgical Rites,... and in which groups of the faithful may gather for a rich variety of devotions expressive of the faith life of a given culture, region, or ethnic community. The community which will be served primarily by Diocese's building is the Catholic student population of Penn State University. All of the functions which will be conducted at Diocese's building are Catholic in nature. The purpose is to give the cultural focus of the building, the Catholic students of Penn State University, a church setting where even the secular activities which will be conducted will be experienced in a Catholic environment. Hopkins take the USCCB document and imply that the design of Diocese's building is inconsistent with the USCCB guidelines. If the court reviews the first floor plan of Diocese, it will find all the attributes of a church consistent with the USCCB guidelines. *9 Diocese's building has a nave (space within the church building for the faithful other than the priest celebrant and the ministers, i.e. congregational seating), a sanctuary ((the space where the altar and ambo (from which God's word is proclaimed) stand, and where the priest, deacon and other ministers exercise their offices)), choir seating, and narthex (as displayed in Diocese's plan as gathering spaces and Great Room.) In addition to the areas cited by Hopkins as requirements for a church building, Diocese has also included such traditional Catholic touches as a holy water font, sacristy, statuary, and reconciliation rooms. Lastly, the remainder of the first floor plan shows what is reserved for the priests' residence, what is typically known in the Catholic and Christian traditions as a rectory. Although Diocese rejects the requirement being applied by ZHB and advocated by Hopkins that actual church functions must employ a minimum percentage of the building, even Hopkins' own exhibit demonstrates that the entire first floor plan of Diocese's building is of a typical Catholic church. This, combined with the exterior architectural design of the building, will leave little doubt as to the purpose of Diocese's building, that of an ecclesiastical building akin to a church.

Lastly, the Diocese contends that the reliance by the ZHB on Franchi v Zoning Hearing Board of the Borough of New Brighton, 117 Pa. Cmwlth. 236, 543 A.2d 239 (1988), was similarly misplaced. Again, the court in Franchi was faced with deciding the matter in reliance upon a definition supplied by the zoning ordinance. As its been argued in the preceding paragraphs, no such definition of church is supplied by the State College *10 ordinance. Therefore, the court must rely on prior court pronouncements as to what is a church.

*11 CONCLUSION

For the foregoing reasons, Appellee, Diocese of Altoona-Johnstown, contends that the Opinion and Order of the Court of Common Pleas of Centre County dated June 30, 2005 should be affirmed. DIOCESE OF ALTOONA-JOHNSTOWN, v. ZONING HEARING BOARD OF THE BOROUGH OF STATE COLLEGE, Donald Hopkins and Mildred Hopkins, Appeal of Donald and Mildred Hopkins. 2005 WL 5279664 (Pa.Cmwlth.) (Appellate Brief) Briefs and Other Related Documents (Back to top) 2005 WL 5279665 (Appellate Brief) Appellants' Brief (Nov. 7, 2005) Document with Appendix (PDF) 1549 CD 2005 (Docket) (Jul. 26, 2005) END OF DOCUMENT Original Image of this

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Neighbors Brief Commonwealth Court of Pennsylvania. DOICESE OF ALTOONA-JOHNSTOWN, v.

ZONING HEARING BOARD OF THE BOROUGH OF STATE COLLEGE, Donald Hopkins and Mildred Hopkins, Appeal of: Donald and Mildred Hopkins. No. 1549 CD 2005. November 7, 2005. Appeal of Order Dated June 30 2005 of the Court of Common Pleas of Centre County Trial Court Docket no. 2005-929 Appellants' Brief Engle & Engle, P.C., David D. Engle, Esquire, Attorney I.D. No. 55930, 1500 S. Atherton Street, State College, PA 16801, (814)234-8834, Attorney for Appellants, Donald and Mildred Hopkins. *i TABLE OF CONTENTS Table of Citations ... ii I. Statement of Jurisdiction ... 1 II. Order in Question ... 1 III. Statement of Questions Involved ... 2 IV. Statement of the Case ... 4 V. Summary of Argument ... 8 VI. Argument ... 10 A. ZHB Decision that the primary use of the proposed Catholic Student Center is as a student center rather than a church or other place of religious worship and that said student center use is not permitted as a primary use in the R-2 Zoning District under Section 501.b of the State College Borough Zoning Ordinance was legally correct and was supported by substantial evidence ... 10 B. The uses of the non-church portions of the proposed structure are not permitted under Section 501.b of the State College Borough Zoning Ordinance as accessory uses because they are student union/center and multi-family residential uses rather than the permitted accessory uses of religious instruction or a religious school ... 25 C. ZHB Decision that the proposed Catholic Student Center structure is not permitted in State College Borough's R-2 zoning district protects area homogeneity and preserves the integrity of the State College Borough Zoning Ordinance by supporting the intent of the R-2 zoning district regulations ... 29 VII. Conclusion ... 31 Appendices Findings of Fact, Conclusions of Law and Decision of Zoning Hearing Board of the Borough of State College Adopted February 7, 2005 ... Appendix A Opinion and Order of Judge Thomas K. Kistler Entered June 30, 2005 ... Appendix B

Proposed First Floor Plan for Catholic Student Center ... Appendix C *ii TABLE OF CITATIONS Cases Appeal of the Russian Orthodox Church of the Holy Ghost of Ambridge, 397 Pa. 126, 152 A.2d 489 (1959) ... 223, 28, 29, 30, 31 Appeal of Upper St. Clair Township Grange No. 2032, 397 Pa. 67, 152 A.2d 768 (1959) ... 20, 21, 22 Camp Ramah in the Poconos, Inc. v. ZHB of Worcester Township, 743 A.2d 1019 (Pa. Comm. Ct. 2000) ... 27, 28, 29 Franchi v. ZHB of Borough of New Brighton, 117 Pa. Commw. 236, 543 A.2d 239 (1988) ... 2, 8, 15, 16 Fun Bun, Inc. v. Zoning Board of Adjustment 5 Pa. Commw. 439, 291 A.2d 344 (1972) ... 15 Herr v. Grier, 448 Pa. Super. 216, 671 A.2d 224 (1995) ... 20 Hileman v. Morelli, 413 Pa. Super. 316, 605 A.2d 377 (1992) ... 20 Merry v. Zoning Board of Adjustment, 406 Pa. 393, 178 A.2d 595 (1962) ... 11 Nascone v. Ross Township Zoning Hearing Board, 81 Pa.Commw.482,473 A.2d 1141 (1984) ... 10 Rushford v. Zoning Hearing Board of Adjustment of Pittsburgh, 81 Pa. Commw. 274, 473 A.2d 719 (1984) ... 10 Southco, Inc. and Contact II, Inc. v. Concord Township, 552 Pa. 66, 713 A.2d 607 (1998) ... 2, 8, 14, 16 Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983) ... 10 *iii Statutes 1 Pa. C.S. 1903(a) ... 20 42 Pa. C.S. 762(a)(4) ... 1 Ordinances (All citations are to the State College Borough Zoning Ordinance) Section 110.a ... 9, 30, 31 Section 201 ... 3, 9, 11, 16, 25, 26, 31 Section 501 ... 3, 7, 9, 10, 11, 16, 18, 25, 29, 31 Section 601 ... 3, 7, 9, 16, 31

Section 1202.a ... 13, 14 *1 I. STATEMENT OF JURISDICTION This Court has jurisdiction over this matter by reason of the Pennsylvania Judicial Code, 42 Pa. C.S. 762(a)(4), which provides that the Commonwealth Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas in zoning matters.

II. ORDER IN QUESTION

AND NOW, this 30th day of June, 2005, the State College Borough Zoning Hearing Board's February 7, 2005 decision is hereby REVERSED. The Borough of State College shall issue a Building Permit, as approved by the Zoning Officer, within thirty (30) days. *2 III. STATEMENT OF QUESTIONS INVOLVED A. Did the ZHB commit an error of law or abuse its discretion by holding that the primary use of the proposed Catholic Student Center structure is a prohibited student center rather than a permitted church and did the trial court err by substituting its judgment for that of the ZHB to adopt a broad definition of the undefined term church and hold that the primary use of said proposed structure is a permitted church while ignoring the following arguments made by the Appellants in support of the ZHB decision: (1) That dimensional considerations are extremely important in determining the primary versus the accessory use of a proposed structure under the State College Borough Zoning Ordinance and the cases of Southco and Franchi; (2) That the Diocese's own description of the concept plan as a Catholic Student Center should be given great weight in determining the primary use of the proposed structure; (3) That the alleged primary use chapel will not be a neighborhood church open to all residents of College Heights and State College, but rather will be used almost exclusively to meet the spiritual needs of the Penn State Catholic student community; (4) That the proposed use of the structure does not fall under the Catholic Conference of Bishops' own definition of church; (5) That the proposed use of the structure does not satisfy the dictionary definition of the word church; (6) That the Diocese cannot combine multiple accessory uses into one primary use; and (7) That the proposed use comprises a Newman House/Center and not a Catholic Church? *3 B. Did the trial court commit an error of law or abuse its discretion after finding that the primary use of the proposed structure is a church by not then making a determination whether any accessory uses of the structure are permissible under Sections 201, 501 and 601 of the Borough's Zoning Ordinance and the applicable case law given that the portions of the proposed structure not taken up by the primary church use, including the student center and multi-family residential use components, cannot be classified as either religious instruction or a religious school under Section 501.b?

C. Was the ZHB's decision that the proposed Catholic Student Center structure is not permitted in State College Borough's R-2 zoning district legally correct given that said decision protects area homogeneity and preserves the integrity of the State College Borough Zoning Ordinance by supporting the intent of the R-2 zoning district regulations? *4 IV. STATEMENT OF THE CASE A. Procedural History Appellants are Donald and Mildred Hopkins, adult individuals residing at 523 North Allen Street, State College, Pennsylvania. Appellee is the Diocese of Altoona-Johnstown (Diocese), a religious institution having its principal offices at 126 Logan Boulevard, Hollidaysburg, Blair County, Pennsylvania. Appellee is the Zoning Hearing Board of the Borough of State College (ZHB), having its principal office at 243 South Allen Street, State College, Pennsylvania. Although not permitted to intervene in the land use appeal at the trial court level another protestant below with Appellants Hopkins was the College Heights Association (CHA), a Pennsylvania Non-Stock Non-Profit Corporation having a registered office at 213 East Mitchell Avenue, State College, Centre County, Pennsylvania. By letter dated October 18, 2004, the Borough of State College's Zoning Office approved a concept plan filed by the Diocese proposing the erection of a Catholic Student Center at 113/117/123 East Park Avenue, State College, Pennsylvania. R.30a Protestants CHA and Donald and Mildred Hopkins subsequently filed an appeal of the aforesaid Zoning Office approval of the Diocese's proposed Catholic Student Center. R.14a The ZHB held a hearing on January 10, 2005, with CHA and Appellants Hopkins being recognized by the ZHB as parties to the ZHB proceeding. The ZHB issued a decision on February 7, 2005 adverse to the Diocese. (Appendix A to Brief) On March 9, 2005, the Diocese filed a land use appeal to the trial court. R.4a On March 25, 2005, CHA filed a Petition to Intervene in the trial court land use appeal. On April 14, 2005, the Diocese filed an Answer With New Matter to the Petition to Intervene filed by CHA. *5 On April 27, 2005, Appellants Hopkins filed a Petition to Intervene. By Opinion and Order dated May 18, 2005, the trial court granted the intervention petition of Appellants Hopkins and denied CHA's petition to intervene. R.390a On June 30, 2005, the trial court issued an Opinion and Order reversing the ZHB and sustaining the land use appeal filed by the Diocese of Altoona-Johnstown. Appendix B to Brief B. Factual History The Diocese and its agents own five tracts of land along East Park Avenue in the Borough of State College. R.76a to R.82a On October 15, 2004, the Diocese submitted to the Borough of State College a revised concept plan entitled Catholic Student Center which proposed a twostory modern structure to be located on three of those tracts known as 113/117/123 East Park Avenue, State College, Pennsylvania on October 15, 2004. R34a The Appellants reside directly across Lehman Way (an alley) form the proposed structure. The revised concept plan is entitled Catholic Student Center and was admitted as Exhibit 9. R.34 The revised plan that was before the ZHB and the trial court and is now before this Court proposes a basement, first floor and second floor. The various elements of the structure as depicted on the plan will now be summarized by floor level. A. Basement Floor Plan (R.37a) The proposed basement floor plan depicts the following areas or rooms: (1) student project storage; (2) mechanicals; (3) group study; (4) additional group study; (5) study suite; (6) mechanicals room; (7) elevator; (8) men's bathroom; (9) women's bathroom; (10) elevator

machinery room; (11)janitorial closet; (12) small storage closet; (13) closet; (14) additional closet; (15) TV lounge with entertainment center; (16) closet adjacent to TV lounge; (17) kitchen *6 with two pantries; (18) game room; (19) closet adjacent to game room; (20) storage; (21) laundry; and (22) mechanicals room. The proposed basement floor plan includes a gross floor area of 7,843 square feet. B. First Floor Plan (Omitted from Trial Court Record, see Appendix C to Brief) The proposed first floor plan includes a 70 seat chapel together with the following additional areas/rooms that are described separately on the plan: (1) statuary; (2) sacristy; (3) clavanovia; (4) storage; (5) reception; (6) large gathering area; (7) foyer; (8) great room; (9) reconciliation; (10) second reconciliation room; (11) women's bathroom; (12) men's bathroom; (13)janitorial closet; (14) pick-up/delivery; (15) elevator; (16) service kitchen; (17) living room with fireplace; (18) coat closet; (19) beverage pantry; (20) buffet; (21) dining room; (22) storage; (23) kitchen; (24) pantry; (25) laundry; (26) toilet; (27) housekeeping; (28) three-car garage; and (29) garden maintenance. The proposed first floor plan includes a gross floor area of 9,641 square feet. C. Second Floor Plan (R.37a) The proposed second floor plan includes the following rooms/areas: (1) guest suite with handicapped bath; (2) guest suite with bath and walk-in closet; (3) hall closet; (4) storage; (5) gathering; (6) a second larger storage closet with two doors; (7) corridor; (8) bedroom with bath and walk-in closet; (9) study with desk and coffee bar; (10) office; (11) study with walk-in closet and coffee bar; (12) second bedroom with bath; (13) third bedroom with bath; and (14) an additional study room with coffee bar, desk and walk-in closet. The proposed second floor plan includes a gross floor area of 4,289 square feet. The proposed square footage for the entire structure is therefore 21,773 square feet. *7 The three lots owned by the Diocese/its agents and identified as 113, 117 and 123 East Park Avenue are all within State College Borough's R-2 Zoning district. The R-2 Zoning district is a residential zoning district with its permitted uses enumerated at Section 601 of the State College Borough Zoning Ordinance. R.38a In addition to 2-family dwellings and student homes, Section 601 also permits any use allowed in the R-1 zoning district. The R-1 District regulations set forth at Section 501 allow the following primary uses: (1) Country Club; (2) Cultivation of land and general gardening; (3) 1-family dwelling; (4) 1-family dwelling with a single apartment unit; (5) Student home; (6) Required off-street parking space; (7) Playground or park (non-profit) or publicly-owned recreation area; (8) Public School; and (9) Signs. The only other permitted primary use in the R-1 zone, and the use at issue in this matter, is found at Section 501.b., which was originally enacted on June 20, 1959 and was subsequently amended by Ordinance 1788 on July 6, 2004. R.40a Section 501.b allows the following primary use: b. Church or other place of religious worship including accessory religious instruction and religious school as an accessory use when located on the same lot as the place of religious worship, provided that the lot has frontage on and primary vehicular access from an arterial street and meets parking as required in Section 2403.c. (emphasis added) *8 V. SUMMARY OF ARGUMENT The ZHB did not commit an error of law or abuse its discretion by deciding that the primary use of the proposed Catholic Student Center structure is a prohibited student center rather than a permitted church as the ZHB correctly applied the applicable ordinance, statutory and case law and the ZHB's decision was supported by substantial evidence. The trial court erred by substituting its judgment for that of the ZHB to reverse the ZHB by adopting a broad definition of

the undefined term church and holding that the primary use of the proposed Catholic Student Center structure is a permitted church while ignoring the following arguments made by the Appellants in support of the ZHB Decision: a. That dimensional considerations are extremely important in determining the primary versus the accessory use of a proposed structure under the State College Borough Zoning Ordinance and the cases of Southco and Franchi; b. That the Diocese's own description of the concept plan as a Catholic Student Center should be given great weight in determining the primary use of the proposed structure; c. That the alleged primary use chapel will not be a neighborhood church open to all residents of College Heights and State College, but rather will be used almost exclusively to meet the spiritual needs of the Penn State Catholic student community; d. That the proposed use of the structure does not fall under the Catholic Conference of Bishops' own definition of church; e. That the proposed use of the structure does not satisfy the dictionary definition of the word church; *9 f. That the Diocese cannot combine multiple accessory uses into one primary use; and g. That the proposed use comprises a Newman House/Newman Center and not a Catholic Church. The trial court erred after finding that the primary use of the proposed structure is a church by not then making a determination whether any of the accessory uses of the structure are permissible under Sections 201, 501 and 601 of the Borough's Zoning Ordinance and the applicable case law given that the portions of the proposed structure not taken up by the primary church use, including the student center and multi-family residential use components, cannot be classified as either religious instruction or a religious school under Section 501.b. The ZHB's decision that the proposed Catholic Student Center structure is not permitted in State College Borough's R-2 zoning district was legally correct and supported by substantial evidence because said decision protects area homogeneity and preserves the integrity of the State College Borough Zoning Ordinance by supporting the intent of the R-2 zoning district regulations. The trial court erred by failing to consider Section 110.a of the Borough's Zoning Ordinance and the principle of area homogeneity in finding that the Diocese's proposed Catholic Student Center structure is permitted in the Borough's R-2 zoning district and the historic College Heights neighborhood.

*10 VI. ARGUMENT

When a court of common pleas does not take additional evidence on an appeal from a zoning hearing board decision, the Commonwealth Court's standard of review is limited to determining whether the zoning hearing board committed either a manifest abuse of discretion or an error of law. Rushford v. Zoning Hearing Board of Adjustment of Pittsburgh, 81 Pa. Commw. 274, 278, 473 A.2d 719, 722 (1984). A zoning hearing board abuses its discretion only if its findings of fact are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). By substantial evidence, courts mean

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Under this deferential standard of review, the reviewing court (whether the trial court or this Court) is not permitted to substitute its judgment for that of the initial factfinder or make credibility determinations. Nascone v. Ross Township Zoning Hearing Board, 81 Pa. Commw. 482, 473 A.2d 1141 (1984)

A. ZHB DECISION THAT THE PRIMARY USE OF THE PROPOSED CATHOLIC STUDENT CENTER IS STUDENT CENTER RATHER THAN CHURCH OR OTHER PLACE OF RELIGIOUS WORSHIP AND THAT SAID STUDENT CENTER USE IS NOT PERMITTED AS A PRIMARY USE IN THE R-2 ZONING DISTRICT PURSUANT TO SECTION 501.B OF STATE COLLEGE BOROUGH'S ZONING ORDINANCE WAS LEGALLY CORRECT AND WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

Applying said deferential standard of review to this case, the Appellants contend that the ZHB did not abuse its discretion or commit an error of law in finding that the proposed primary use of the property is the prohibited student center use rather than the permitted primary use of a church or other place of religious worship. The ZHB correctly interpreted Section 501.b because said section requires the primary use of the property to be a church or other place of religious *11 worship and substantial evidence was presented to the ZHB establishing that the primary use of the proposed building is the institutional use of student center. The trial court erred by not applying the deferential standard of review discussed hereinabove and by improperly substituting its judgment for that of the ZHB in reversing the ZHB's decision. In reaching its February 7, 2005 Decision, the ZHB correctly cited the law of accessory use and primary use. The State College Borough Zoning Ordinance defines an accessory use at Part B, Section 201 as follows: Use (Accessory). A secondary use customarily incidental to and clearly subordinate to the primary use of the lot or its structures and located on the same lot as the primary use, unless specifically permitted elsewhere by these regulations. (emphasis added) Section 201 defines primary use as follows: Use (Primary). The principal use of a lot or structure. The Pennsylvania courts have held that whether a proposed use as factually described in an application or in testimony falls within a given category specified in a zoning ordinance is a question of law. Merry v. Zoning Board of Adjustment, 406 Pa. 393, 178 A.2d 595 (1962). Section 501.b clearly requires that the primary use of an R-2 structure be a church or other place of religious worship. Section 501.b then permits either religious instruction or a religious school as an accessory use to the church/chapel primary use. The ZHB correctly applied these two portions of Section 501.b in finding that the primary use of the proposed structure is NOT the permitted use of church or other place of religious worship. The ZHB's decision was supported by substantial evidence and the ZHB took into consideration both qualitative and quantitative (dimensional) considerations in making its conclusion regarding. the true character of the primary and accessory uses of the proposed structure. The following *12 paragraphs outline the substantial evidence and Pennsylvania law that support the ZHB's decision and contradict the trial court's subsequent reversal.

(1) Primary vs. Accessory-Dimensional Considerations and Clearly Subordinate Requirement

State College Borough's definition of accessory use is helpful in determining whether the proposed chapel is the primary use of the property. The zoning ordinance sets forth a two prong definition of accessory use. First, the proposed accessory use must be customarily incidental to the primary use of the lot or its structure. Second, the proposed accessory use must be clearly subordinate to the primary use of the structure. The Appellants concede that a

Catholic student center could be customarily incidental to a church and agree that the first prong of the accessory use definition is satisfied here. However, the ZHB correctly concluded that the second prong of the accessory use definition is not satisfied here because the facts establish that an institutional student center use is actually the primary use of the structure while the chapel use is clearly subordinate to said primary student center use. The concept plan dated September 30, 2004 as last revised October 15, 2004 (R.34a) demonstrates that the proposed building devotes significantly more square footage to the student center use than to the chapel use. The concept plan depicts a structure with three distinct uses: (1) chapel; (2) multi-family residence; and (3) student center. Although the October 15, 2004 concept plan now at issue proposes a larger chapel than set forth in the 2002 plan (R.18a), the chapel still only contains 70 seats and the first floor rooms that support the chapel comprise at most fifty percent (50%) of the first floor of the structure and none of the basement nor second floor. The other fifty percent (50%) of the first floor is devoted *13 partially to a student center use and partially to a multi-family residential use. The entire second floor is devoted to a multi-family residential use that is related to the student center use because the benedictine monks who would live there would be charged with meeting the spiritual needs of Penn State's Catholic student community. The basement is devoted to the student center use and storage. From a dimensional standpoint only, the proposed chapel use comprises at most 22% of the gross floor area shown on the concept plan. The calculation is based upon the following square footage figures set forth in the plan: (1) Gross Basement Floor Area = 7,843 sq. feet; (2) Gross First Floor Area = 9,641 sq. feet; and (3) Gross Second Floor Area = 4,289 sq. feet. The three areas combine for a total gross floor area of 21,773 square feet. The amount of gross floor area devoted to the chapel and supporting rooms is 4,820.50 square feet, which is 22% of the total gross floor area shown. This calculation is generous in that it assigns 50% of the gross floor area of the first floor to the chapel use rather than a lesser percentage. In fact, the ZHB found at finding 27 that the chapel depicted on the revised concept plan is 2400 square feet, which is 11.02% of the gross floor area of the entire proposed building. Although dimension is not the only factor in determining whether a use is clearly subordinate to another use in the same structure, it is clearly a significant factor. In fact, State College Borough at Section 1202.a of the University Planned District provisions of the Zoning Ordinance defines accessory use in pertinent part as follows: a. Accessory Use. A use customarily incidental, subordinate and directly related to a general or designated use. Accessory uses in the UPD shall be limited in size by the following standards: *14 - For buildings of less than 20,000 square feet in size containing a permitted general or designated principal use, an individual accessory use is limited to 2000 square feet. - For buildings of 20,000 square feet or greater in size containing a permitted general or designated principal use, an individual accessory use may not exceed 10 percent of the gross floor area. The Appellants concede that the above-referenced UPD provision by its terms does not apply to the R-2 zoning district at issue here, but the State College Borough UPD provision's use of dimensional considerations to define accessory use is nevertheless instructive. State College Borough UPD Section 1202.a requires that an individual accessory use not exceed 10% of the gross floor area of a designated primary use building that is greater than 20,000 square feet in gross floor area. If Section 1202.a applied to the Diocese's proposed 21,773 square foot building, any otherwise permissible accessory use would be limited to 2,177.30 square feet, which is much

smaller than the area proposed to be devoted to either the student center use or the multi-family residential use here. The ZHB applied the law correctly in concluding that the Pennsylvania Supreme Court has emphasized dimensional considerations in determining whether a use is an accessory use that is clearly subordinate to a given primary use. Appellants agree that the case of Southco, Inc. and Contact II, Inc. v. Concord Township, 552 Pa. 66, 713 A.2d 607 (1998) which was cited by the ZHB applies to the instant matter. In Southco, a proposed Turf Club included both a restaurant use and a wagering use. The restaurant use comprised 75% of the building area while the wagering use comprised 25% of the building area. One issue presented was whether the wagering component was an accessory use to the restaurant use. The protestants argued that because the wagering use would generate most of the revenue, it was not clearly subordinate to the restaurant *15 use and thus was not an accessory use. The Supreme Court disagreed, holding that the wagering use was clearly subordinate to the restaurant use and was an accessory use. The Supreme Court relied in large part upon the 75% to 25% building area ratio between the two uses in making its determination. The ZHB also correctly applied the case of Franchi v. ZHB of Borough of New Brighton, 117 Pa. Commw. 236, 543 A.2d 239 (1988) to the Diocese plan. In Franchi, landowner Franchi owed a duplex building. The right side of the duplex was rented to a third party tenant. The left side of the building was used primarily for Mr. Franchi's accounting office, although it did contain an upstairs efficiency apartment. The building was located in the municipality's R-1 zone and the neighbors protested the landowner's use of the property for commercial purposes. Mr. Franchi argued that the primary use of the property was a residence while the accounting office was a permitted accessory use. The zoning hearing board sided with the neighbors. The common pleas court reversed, holding that Mr. Franchi was not violating the zoning ordinance and could continue to operate his accounting office. On appeal, the Commonwealth Court reversed, agreeing with the protestants that the accounting office represented the primary use of the building and not an accessory use as contended by Mr. Franchi. The court noted that an accessory use is inferior, secondary, or subordinate to the principal use. 543 A.2d at 241. The court also stated that [a] use which is a principal use ... cannot be justified under the accessory use provisions of a zoning ordinance. Id. (citing Fun Bun, Inc. v. Zoning Board of Adjustment, 5 Pa. Commw. 439, 291 A.2d 344 (1972)). *16 Reading the Southco and Franchi cases together with the Borough's definitions of accessory use and primary use, the Appellants contend that the ZHB correctly found that the primary use of the proposed structure is not a church or other place of religious worship, but is rather the institutional use of student center which is not permitted as a primary use in the Borough's R-2 zoning district. The ZHB correctly took dimensional disparities into consideration and correctly applied Sections 201, 501 and 601 of the State College Borough Zoning Ordinance and the cases of Southco and Franchi to hold that the chapel or church use was a clearly subordinate accessory use to the primary student center use of the proposed Catholic Student Center. The trial court erred by not taking into consideration dimensional considerations and by not applying the Southco and Franchi cases and the Borough's zoning ordinance definitions of primary use and accessory use. The trial court erred by emphasizing the definition of church rather than applying the law of accessory use and primary use to determine the primary use of the proposed structure. The trial court clearly did not follow the appropriate deferential standard of review that is applicable to ZHB cases where no additional evidence is taken at the trial court level.

(2) DIOCESE TITLE OF CONCEPT PLAN INSTRUCTIVE AS TO NATURE OF USE

In addition to the disparity in gross floor area devoted to the chapel use versus that devoted to the student center and multi-family residential uses, there are other factors which support the ZHB's conclusion that the student center use is the primary use of the structure. First, the name used by the Diocese for the revised concept plan is Catholic Student Center. R.34a The Diocese does not describe the project in its own concept plan as a church or chapel with an *17 accessory student center. Instead, it describes the use as a Catholic Student Center. The Diocese made the decision to name the plan in that manner before any litigation was initiated. The Diocese's own description of the plan prior to litigation should thus be given great weight in determining whether the primary use of the structure is a church or a student center. Even Diocese treasurer Larry Sutton testified that the Diocese undertook a vision study and spent a lot of time talking about how you name this thing before putting a name on the plan. R.293a The name given to the plan/project by the Diocese is therefore part of the substantial evidence supporting the ZHB's decision. The trial court erred in ignoring this substantial evidence that was presented to the ZHB.

(3) PROPOSED STRUCTURE IS NOT A COMMUNITY CHURCH

The ZHB's decision is also supported by substantial evidence establishing that the alleged primary use chapel would not be a neighborhood church open to all residents of College Heights and State College. The name of the plan seems to indicate that the chapel and other areas of the proposed building will be devoted almost exclusively to meeting the spiritual needs of the Penn State Catholic student community. This purpose is confirmed by Sister Mary Parks' article/letter on behalf of the Diocese in the January 4, 2005 edition of the Centre Daily Times. R.74a Substantial evidence was presented to the ZHB establishing that the chapel portion of the building will not be devoted to any type of regular or even sporadic neighborhood or non-student community worship. Father Matthew Laffey testified that the chapel will be used for daily mass in the mornings to be attended by an average of 23 students. R.200a Diocesan representative Larry Sutton noted that we did not want this to be viewed as a parish where just anybody feels like that's another choice for Sunday Mass .... R.293a *18 The ZHB correctly interpreted Section 501.b of the State College Borough Zoning Ordinance to only permit churches that are open to the community at large in the Borough's R-2 zoning district. The ZHB noted in finding of fact 9 that the College Heights neighborhood included two community churches located west of Atherton Street at the time of the ZHB hearing. Appendix B to Brief Carolyn Kunz of the CHA testified that these churches were the Islamic Church of State College and the First Church of Christ. R.157a Substantial evidence was presented to the ZHB establishing that the proposed Catholic student center building does not in any manner comprise a community church like the other churches that exist in the College Heights neighborhood or other R-2 neighborhoods in State College. The testimony of Larry Sutton and Father Matthew Laffey made clear that the structure would predominantly serve Penn State Catholic students rather than the public at large or the neighborhood of College Heights. The trial court erred in ignoring this substantial evidence that the alleged church in the proposed structure would not be a community church like the other churches in the College Heights neighborhood.

(4) PROPOSED USE DOES NOT FALL UNDER THE CATHOLIC CONFERENCE OF BISHOPS' OWN DEFINITION OF CHURCH

At the ZHB deliberations prior to the issuance of the final written ZHB Decision, the Board discussed the written definition of church found in the United States Conference of Catholic Bishops' website. The website at www.usccb.org includes a liturgy section comprising several chapters. The chapter that is most relevant to this matter is Chapter Two, which is entitled The Church Building and the Sacred Rites Celebrated There. Chapter Two from the USCCB website is not part of the official ZHB record but was submitted to the trial court as a secondary source. *19 At the beginning of said chapter, the essence of the church building is described as follows: The church building houses the community of the baptized as it gathers to celebrate the sacred liturgy. By its practical design and beauty it fosters the full, dignified, and graceful celebration of suitability for the celebration of the Eucharist and other liturgical rites of the Church. Chapter Two subsequently describes the various required physical components of a church including the nave, the sanctuary area, the altar, the ambo, the chair for the priest celebrant, the bapistry, churchgoer seating, choir seating, and the gathering space (narthex). The conclusion of Chapter Two states as follows: In this chapter, the liturgical actions of the Church provide the guidelines for the building of a church. There must be space for the variety of the community's prayer, which extends from the primary worship of the Eucharist to popular devotions. The complex balance of all these factors and of the people who participate in them is the most important dimension for the education, planning and execution of a building plan for the community ... Applying the United States Conference of Catholic Bishops' definition of church from the USCCB website's liturgical Chapter Two to the facts of this case, the Appellants contend that the ZHB was correct in finding that the proposed structure does not primarily comprise a church or other place of religious worship. The reason that the Diocese did not use the word church in the title or cover page of the revised concept plan is that the Diocese was prohibited from doing so by the definition of church found in the liturgical chapter mentioned above. The ZHB's decision is therefore consistent with the Catholic Church's own definition of church as many of the rooms described in the revised concept plan are not mentioned as the essential components of a Catholic church in *20 Chapter Two. Chapter Two does not provide that a church must include a game room, TV lounge, study suites, or multiple guest suites. Many of the rooms other than the chapel shown on the revised concept plan are not essential to nor in any manner related to the liturgical functions of a church that are enumerated in Chapter Two. In fact, even assuming that 50% of the first floor is related to the liturgical functions of a Catholic church, that only calculates to 22% of the entire structure being related to a church. The ZHB was therefore correct in concluding that the primary use of the proposed structure is a student center and not a church. The trial court erred by ignoring the Catholic Church's own definition of the term church in making its determination that the primary use of the proposed structure is a permitted church and not a prohibited student center.

(5) STRUCTURE DOES NOT MEET DICTIONARY DEFINITION OF CHURCH

The ZHB's decision is also supported by the application of traditional dictionary definitions to the proposed use in this case. Because the word church is not defined by the State College Borough Zoning Ordinance, the reviewing court or tribunal must construe the word or phrase according to the rules of grammar and according to its common and approved usage. 1 Pa. C.S. 1903(a) The reviewing court or tribunal should make reference to common usage before

concluding that an ambiguity exists. In doing so, the court may refer to dictionary definitions. Herr v. Grier, 448 Pa. Super. 216, 220, 671 A.2d 224, 226 (1995); Hileman v. Morelli, 413 Pa. Super. 316, 330-31, 605 A.2d 377, 384 (1992). The word church is defined by Webster's New Collegiate Dictionary as a building for public and especially Christian worship. The Pennsylvania Supreme Court has defined the term church in a very similar manner. In the case of *21 Appeal of Upper St. Clair Township Grange No. 2032, 397 Pa. 67, 152 A.2d 768 (1959), the Pennsylvania Supreme Court stated that [t]he ordinary meaning of the term contemplates a place or edifice consecrated to religious worship, where people join together in some form of public worship. 152 A.2d at 771. The primary use of the proposed structure depicted in the revised concept plan and as discussed by church officials at the ZHB hearing does not comport with the definition of church from Webster's or the Upper St. Clair case. The primary use of the building is simply not a place of public worship but rather is a student center. Father Matthew Laffey testified that the proposed Catholic Student Center is intended as a place for Penn State Catholic students to practice their faith. R. 191a-R.200a However, he noted that the Penn State Catholic community would still use the Pasquerilla Center on campus for weekend mass for between 1200 and 1800 catholic students on average. R.191a He also stated that the three benedictine monks would still have offices at the Pasquerilla Center. R.192a The proposed structure would only offer daily mass, which at the time of the hearing was given to an average of 23 students per day. R.200a Father Laffey's testimony also made clear that the daily masses would primarily be attended by Penn State Catholic students, although small numbers of faculty might attend. R.213a The ZHB's decision was legally correct as the ZHB correctly applied the dictionary definition of church and the Pennsylvania Supreme Court's Upper St. Clair definition of church to the evidence presented at the hearing as outlined hereinabove. The ZHB did not expand the dictionary/ Upper St. Clair definition of church and recognized public worship as the cornerstone of the definition. *22 The trial court stated at pages 5 and 6 of its Opinion and Order as follows: This Court believes a church is defined by the expectations of the people at the building, and the soul of those present. A church, of any denomination, is devoted to the study of faith. Faith is not a science, but is an intangible concept of belief, trust and submission to a higher force. It is as much about the atmosphere of the location and fellow believers, as it is about the physical structure of the location. In short, a building dedicated to religion is a church. (Appendix B, pp. 5-6) The trial court therefore ignored the substantial evidence presented to the ZHB and erred by misapplying the applicable deferential standard of review by substituting its judgment for that of the ZHB and adopting an overly broad definition of the term church in contravention of the definitions set forth in Webster's and Upper St. Clair. The broad definition of the term church adopted by the trial court not only violated the applicable deferential standard of review, but would be improper even if a higher degree of judicial scrutiny were warranted. The word church is not defined in the State College Borough Zoning Ordinance. It has been defined by Webster's and by the Pennsylvania Supreme Court in Upper St. Clair. The trial court's broad definition of a church as a building dedicated to religion is not remotely related to Webster's a building for public and especially Christian worship or Upper St. Clair's a place or edifice consecrated to religious worship, where people join together in some form of public worship.

Judge Kistler's definition of church is so broad that it gives Section 501.b little regulatory meaning. By defining a church as any building dedicated to religion and by allowing believers to make the determination of what is and is not a church, Judge Kistler has effectively allowed the Diocese to argue that the proposed student center is a church because the Diocese says it is a church. The trial court erred in adopting this broad definition and its decision *23 contradicts the Pennsylvania Supreme Court decision in Appeal of the Russian Orthodox Church of the Holy Ghost of Ambridge, 397 Pa. 126, 152 A.2d 489 (1959) In that case, which was cited by the ZHB, the Pennsylvania Supreme Court stated by way of example that a religious group which included as a part of its dogma the requirement that animals be slaughtered in a certain way by a certain person would still not be permitted to operate a slaughterhouse in a zoning district where slaughterhouses were not permitted. 397 Pa. at 129, 152 A.2d at 491.

(6) DIOCESE CANNOT COMBINE MULTIPLE ACCESSORY USES INTO ONE PRIMARY USE

The Diocese argued below that the concept of church has been accepted as including accessory uses such as parochial schools, parking lots and playgrounds, rectories, gymnasiums and swimming pools, Boy Scout rooms, and other places of quasi-public assembly, daycare centers and drug rehabilitation centers. This argument was properly rejected by the ZHB as applied to the instant facts as one cannot have an accessory use to a church if there is not first a primary church use. There simply has to be a primary use of a church before there can be a permitted accessory use which would include the above-referenced activities that are incidental to a church primary use. Substantial evidence was presented to the ZHB here establishing that no primary church use exists at the property. Thus, the Diocese's attempt to combine all three of the uses in the proposed structure into one religious or ecclesiastical use is not permitted. The Diocese and Borough Zoning Officer Herman Slaybaugh noted at the ZHB hearing that the State College Borough ZHB in 2002 permitted Our Lady of Victory Catholic Church (OLV) to add an activity center building as an accessory use to the OLV church along Westerly Parkway in State College. (ZHB Finding of Fact 72, Appendix B; See also R. 37a) However, *24 that fact pattern is distinguishable from this case as OLV is the largest Catholic church in the State College area. The primary use of OLV's land and structures along Westerly Parkway is as a church. In that context, the building addition at OLV was permitted as an accessory use to the existing primary church use. The fact that no primary use church exists at the proposed Diocese structure on Park Avenue is what makes this case different from the OLV case. The ZHB therefore correctly rejected the Diocese's argument that the entire building should be lumped into one ecclesiastical use. Because there is not a permitted primary church use at the proposed structure, the accessory uses of student center and multi-family residential are not permitted. The trial court incorrectly lumped all three distinct uses of the building into one vague amorphous church or ecclesiastical use in violation of both the substantial evidence in the ZHB record and the Pennsylvania/State College Borough law of accessory and primary use.

(7) PROPOSED USE IS A NEWMAN HOUSE/CENTER, NOT A CATHOLIC CHURCH

The ZHB's decision that the primary use of the proposed structure is a student center is also supported by substantial evidence presented to the ZHB about Newman Houses/Newman Centers by the Diocese witnesses. The terms Newman House and Newman Center do not use the word church in their title. Sister Mary Parks in her letter to the Centre Daily Times uses the term Newman Center to describe the proposed structure. R.74a Diocese witness Larry Sutton

referred to the term Newman House at the ZHB hearing. Mr. Sutton noted that many universities call their off-campus student centers a Newman House. (R.264a-265a) Regardless of which term was used by Ms. Parks and Mr. Sutton, neither diocesan official called such Newman Centers a church or a parish. The language used by Ms. Parks and Mr. Sutton as authorized representatives of the Diocese, just like the title of the revised concept plan, *25 comprises substantial evidence supporting the ZHB's decision that the primary use of the proposed structure is a student center and not a church. The trial court ignored this substantial evidence and did not even discuss the use by the Diocesan officials of the words Newman House or Newman Center to describe the proposed structure.

B. PROPOSED STUDENT CENTER AND MULTI-FAMILY RESIDENTIAL USES ARE NOT PERMITTED UNDER SECTION 501.B AS ACCESSORY USES BECAUSE THEY CANNOT BE CLASSIFIED AS EITHER RELIGIOUS INSTRUCTION OR A RELIGIOUS SCHOOL

Appellants' second argument is that the trial court erred after finding that the primary use of the proposed structure is a church by not then addressing the issue of whether the remaining student center and multi-family residential uses are permitted in State College Borough's R-2 zoning district as they cannot be classified as either a religious school or a place of religious instruction.. The substantial evidence presented to the ZHB and the application of Pennsylvania law and the State College Borough Zoning Ordinance to said substantial evidence establishes that the remaining uses of the proposed structure cannot be classified as either a religious school or religious instruction. Although certain portions of the State College Borough Zoning Ordinance allow accessory uses that simply satisfy the general definition of accessory use, Section 501.b specifically enumerates only two specific uses that may be accessory to a primary church use in the R-2 zoning district: religious instruction and a religious school. The proposed student center use and the multi-family residential use do not comprise a religious school. The term religious school is defined at Section 201 of the State College Borough Zoning Ordinance as [a]ny school offering instruction in religious based education and *26 operated by, or under the authority of, a bona fide nonprofit religious institution certified by the Department of Education. An example of a local State College religious school would be Our Lady of Victory or the Nittany Christian School. There is nothing in the Diocese concept plan demonstrating that the proposed Catholic Student Center is a religious school as that term has been defined by the Borough of State College. The proposed student center and multi-family residential uses also cannot be classified as religious instruction. The term religious instruction is defined by the State College Borough Zoning Ordinance at Section 201 as [a]n accessory use referring to the teaching of religious information or topics when offered on the same premises as a church, mosque, synagogue, or other place of religious worship and conducted by the religious entity itself. The basement of the proposed building and its rooms do not meet said definition. Along with a study suite and two group study rooms, there is a TV lounge and a game room. These rooms could be used by any Penn State college student for non-religious purposes. None of these rooms/areas meets the Borough's permitted accessory use of religious instruction as defined in Section 201. The listed rooms on the second floor also do not meet the definition of religious instruction. There are three bedrooms with private study areas, walk-in-closets, and bathrooms. There are also two guest suites with bathrooms. There are two large storage closets. The second floor as a unit would best be described as a multi-family residential use. Father Matthew Laffey testified

that these residential areas will be used by the three Benedictine monks who serve the Penn State catholic student community. R.219a The additional master suites will be used by guests including Bishop Joseph Adamec and the Abbot. R.226a There was substantial evidence presented to the ZHB establishing that the second floor area is multi-family residential in nature rather than devoted to religious instruction. Counsel for the Diocese even stipulated at the ZHB *27 hearing that the second floor and the south wing of the building comprised a residence for the priests. R.224a-225a On the first floor, on the left or west side of the building, there are rooms that correspond with the alleged church or chapel use as follows: the chapel, the clavanovia, the statuary, the coat room, the foyer, the two reconciliation rooms, and the reception rooms. As one moves in an easterly direction toward the center of the first floor, the alleged accessory use rooms/areas begin. There is a great room and a long narrow gathering corridor. At the east wing of the first floor, there is a living room with fireplace, a large dining room with buffet and a beverage pantry, a kitchen and a garage. Although some of these rooms might be used for religious instruction, they would more likely be used for non-religious secular purposes. The use of these rooms on the first floor is best classified as a student union use under the Borough Zoning Ordinance's University Planned District regulations. It is apparent from both the revised concept plan (R.34a) and the Parks' letter to the Centre Daily Times (R.74a) that the predominant users of the proposed structure will be Penn State Catholic students and that the primary use will be the institutional secular use of student center. The ZHB correctly applied several Pennsylvania appellate cases that have examined permissible religious accessory uses. In these cases, the Pennsylvania courts have considered the physical nature of the use rather than the religious nature of the landowner in classifying the use. One case correctly applied by the ZHB was Camp Ramah in the Poconos, Inc. v. ZHB of Worcester Township, 743 A.2d 1019 (2000). In that case, Camp Ramah was a non-profit corporation affiliated with the Conservative Jewish Movement that requested a special exception to develop 30 acres in an agricultural zoning district for use as a summer day camp for children and a yearround weekend retreat for adults. *28 The ZHB found that the children's camp was a recreational use rather than a religious use. The Pennsylvania Commonwealth Court affirmed, stating that the fact that the camp would be operated by and for practitioners of a particular religion with the inclusion in the camp program of attendance at synagogue and religious educational experiences does not change the recreational nature of the use of the property. 743 A.2d at 1022. The Commonwealth Court further stated that the ZHB and common pleas court properly focused on the nature of the physical activities rather than the identity of the user, or upon the religious focus through which Camp Ramah utilizes those activities to provide a religious education experience. Id. The ZHB also correctly applied the case of Appeal of the Russian Orthodox Church of the Holy Ghost of Ambridge, 397 Pa. 126, 152 A.2d 489 (1959). In Russian Orthodox, a religious society owned land in the municipality's Sunflower zoning district which permitted primarily residential and agricultural uses but also permitted the religious use of land. The landowner proposed a cemetery and the zoning board and common pleas court held that the use was not permitted. The landowner argued that burial in consecrated grounds was a precept of the church's religion and the cemetery was therefore a permitted religious use. The Pennsylvania Supreme Court affirmed the denial of the proposed use, holding that the proposed cemetery use was not permitted as a religious use. The Court stated that a cemetery is basically a secular use of land and a use which is not incidental to or in support of the primary uses permitted in the Sunflower District... 152 A.2d at 491. The Court noted that the religious society's emphasis on the religious nature of the owner of the land rather than the actual use of

the property was misplaced. For example, the court stated that a religious group which included as a part of its dogma the requirement that animals be slaughtered in a certain way by a *29 certain person would still not be permitted to operate a slaughterhouse in the Sunflower district. Id. The Russian Orthodox decision is also important as the Supreme Court stated that area homogeneity is one of the purposes of a zoning ordinance and should be promoted and preserved. The ZHB correctly applied the above cases and the Borough's definitions of religious instruction and religious school to the instant facts. It correctly concluded at conclusions of law 7 and 9 that the Diocese's proposed student center and multi-family residential uses do not comprise either of the Section 501.b enumerated uses that are allowed to be accessory to a primary church use in the R-2 District. The ZHB correctly found that the physical nature of the use to be made of much of the non-chapel portion of the proposed building is the secular student center use that is similar to the UPD's student union use but is not permitted in the R-2 zoning district. The ZHB further correctly found that the physical nature of the use to be made of the balance of the non-chapel portion of the proposed building is a multi-family residential use that is also not permitted as an accessory use in the R-2 zoning district. The above findings of the ZHB were supported by substantial evidence and comprise a correct application of the Camp Ramah and Russian Orthodox cases to said evidence of record. The trial court erred by not even addressing this issue in its Opinion and Order dated June 30, 2005. C. AREA HOMOGENEITY AND INTENT OF R-2 DISTRICT NEED TO BE PRESERVED The Appellants' final argument is that the ZHB correctly preserved the integrity of the State College Borough Zoning Ordinance and the principle of area homogeneity. The preservation of historic State College R-2 neighborhoods such as College Heights is one of the goals of the Borough's R-2 zoning district regulations. The CHA Executive stated in its January *30 4, 2005 letter in the Centre Daily Times that College Heights is characterized by mature tree-lined streets, restricted vehicular traffic, well-maintained older homes and a strong sense of community pride .... R.72a The proposed Catholic Student Center building is much larger than other structures in the neighborhood, is much more modern than other neighborhood buildings, and does not possess the same residential and historic character as the other buildings in College Heights. (Compare Diocese Concept Plan beginning at R.34a to Pamphlet Entitled Historic District Walking Tour-College Heights Neighborhood beginning at R.44a) As the Pennsylvania Supreme Court stated in the Russian Orthodox case cited above, area homogeneity is one of the important purposes of a zoning ordinance. The R-2 Zoning District is a residential zone. Therefore, State College Borough Zoning Ordinance Section 110's statement of the Borough's Community Development Goals regarding residences and housing is applicable. Section 110.a. provides in pertinent part as follows: a. Goals. (1) Opportunities for a variety of housing choices in locations, types and cost within living environments that offer maximum amenities of safety, quietness, convenience, economy and freedom of blight should be offered to the citizenry. (2) The high quality of existing housing should be maintained. (3) The character of older, sound residential neighborhoods, which lie within close proximity to the University should be preserved. The ZHB's denial of the Diocese's concept plan for the proposed student center therefore correctly supported the goals of the Borough's R-2 zoning ordinance provisions by protecting the

historic residential nature of the College Heights neighborhood. The ZHB correctly applied Sections 201, 501 and 601 of the State College Borough Zoning Ordinance to the Diocese's *31 revised concept plan in accordance with said provisions' plain language, applicable Pennsylvania law, and the stated goals of the R-2 district as set forth in Section 110.a. The ZHB also recognized the importance of preserving area homogeneity as discussed by the Pennsylvania Supreme Court in Russian Orthodox. The trial court erred by not even addressing Section 110.a or the principle of area homogeneity in its June 30, 2005 Order.

VII. CONCLUSION

For the foregoing reasons, Appellants, Donald and Mildred Hopkins, contend that the Opinion and Order of the Court of Common Pleas of Centre County entered June 30, 2005 sustaining the Diocese's land use appeal and reversing the Borough of State College Zoning Hearing Board's Decision Adopted February 7, 2005 should be reversed and the Borough of State College Zoning Hearing Board's Decision Adopted February 7, 2005 should be affirmed.

Appendix not available. DOICESE OF ALTOONA-JOHNSTOWN, v. ZONING HEARING BOARD OF THE BOROUGH OF STATE COLLEGE, Donald Hopkins and Mildred Hopkins, Appeal of: Donald and Mildred Hopkins. 2005 WL 5279665 (Pa.Cmwlth.) (Appellate Brief) Briefs and Other Related Documents (Back to top) 2005 WL 5279664 (Appellate Brief) Appellee's Brief (Dec. 7, 2005) Document (PDF) 1549 CD 2005 (Docket) (Jul. 26, 2005) END OF DOCUMENT Original Image of this

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