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DEANE v. BOARD ADJUSTMENT ZONING BOARD BOROUGH EDGEWORTH (01/20/53)

January 20, 1953

DEANE
v.
BOARD OF ADJUSTMENT OF ZONING BOARD OF BOROUGH OF EDGEWORTH



COUNSEL

John R. Dierst, Jr. and Griggs, Moreland, Blair & Douglass, Pttsburgh, for appellant.

Harold R. Schmidt and John Evans Rose of Rose, Rose & Houston, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 172 Pa. Super. Page 504]

DITHRICH, Judge.

This is an appeal from an order of the County Court of Allegheny County sustaining the action of the Board of Adjustment of the Borough of Edgeworth affirming the refusal of the building inspector to issue a building permit.

Lorena Deane, appellant, acquired title to a parcel of land in Edgeworth Borough by deed dated February 16, 1951. The property is at the northeast corner of Chestnut Road and Beaver Road. It has a frontage of 434.45 feet on Chestnut Road and a depth of 196.76 feet. There is a three-story main dwelling house set back 85 feet from Chestnut Road, about 128 feet from the east side line and 55 feet from the rear property line. A two-story frame building, about 43 by 40 feet in area, stands in the upper right, or northeast corner of the lot, about 5.5 feet from the rear property line and about 10 feet from the east side line. This building, with the main dwelling house, was erected prior to 1900. It was originally designed and actually used as a stable. It now serves as a four-car garage. Since 1904 no housekeeping has been done in the building; there are no quarters or facilities for housekeeping, cooking, or sleeping.

Appellant applied to the building inspector of Edgeworth Borough for permission to remodel part of the structure into a six-room apartment for purposes of rental to persons other than the owner of the main or residential building. The application was refused. On June 11, 1951, an appeal was taken from this refusal to the Borough Board of Adjustment. A public hearing was held on June 18, 1951. The appeal was dismissed for the reason stated that the proposed use of the frame building would not be a use accessory to the main single-family dwelling under the requirements of the Zoning Ordinance.

[ 172 Pa. Super. Page 505]

Appellant then petitioned the Court of Common Pleas of Allegheny County to allow an appeal from the decision of the Board of Adjustment. The appeal was allowed but the record was subsequently certified to the County Court of Allegheny County, as provided by section (k) of Act No. 205 of 1951, P.L. 994, 17 P.S. ยง 626.

After a hearing do novo before Lencher, P. J., at which time witnesses for both sides were heard, the appeal was dismissed. The court, in a memorandum opinion, stated that it saw no grounds for reversal. Exceptions were filed to the opinion of the hearing judge and on February 26, 1952, after argument before a court en banc, the exceptions were overruled. The appeal is before us for review as on certiorari. In re Crawford Zoning Case, 358 Pa. 636, 57 A.2d 862.

The court below found that the Board of Adjustment had sustained the building inspector on the basis of two Borough ordinances. The first is Ordinance No. 257, the Zoning Ordinance. This was passed on December 20, 1949, at a time long after the structure under discussing had come to be used exclusively as a garage and before the Deanes had acquired the property. These are the pertinent sections of the ordinance:

'Section 301. * * * A building may be erected, altered, or used [in the residential area in which the lot under discussion is located], and a lot may be used or occupied ...


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