Sojtori v. Zoning Hearing Board & Moyer

Concurring Opinion by

Judge Kramer :

I agree with the majority in their determination that appellant’s appeal should be denied. The appellant attempts to raise a new argument before this Court. The majority holds, and I concur, that this Court has a limited scope of review, and that it is generally not within the prerogative of this Court to consider matters not raised in, or considered by, the court below.

I am, however, disturbed by the majority’s strong inference that had this Court been able to entertain appellant’s new argument, his appeal would have, nonetheless, been denied. Appellant contends that the Township Zoning Ordinance permits the storage and repair of two trucks as an accessory use. While I find that the degree of repairs permitted may be questionable, I agree with appellant that the Ordinance would permit him to store two trucks in his garage. It ap*557pears that the majority, relying on the Ordinance’s definition of an “accessory use” would deny him this right. The majority reasons that an accessory use, by definition, must be a subordinate use, and that the dwelling house (the principal use permitted) on appellant’s property is vacant and hence, can no longer serve as a principal use. Although I question whether the mere vacancy of a dwelling house is sufficient cause to negate characterizing if as a principal use, and thereby destroy any permitted concomitant accessory uses, I recognize that under a given fact situation that result is possible. The record in this case does not disclose the reason for the vacancy. Was the rent too high? Was it uninhabitable? We don’t know.

Even without these reservations, here, the Zoning Ordinance in Section 200(14) (a) (as quoted in the majority opinion) specifically allows for the storage of two commercial vehicles in a private garage. It also specifically provides for the storage of two motor vehicles owned and used by persons other than the owner or tenant of the premises. From my point of view this section comes close to establishing a special exception or perhaps even a permitted use. Clearly, appellant’s use of the property is no less subordinate to the dwelling house (albeit vacant) than the permitted use of the garage by a nonowner, nontenant to store two totally unrelated commercial vehicles. Therefore, if this issue were properly before this Court, I would decide in favor of the appellant; since it is not, I must concur in the result.