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APPEAL FERRARO. APPEAL WILLIAMS. (WILLIAMS APPEAL.) (01/19/54)

January 19, 1954

APPEAL OF FERRARO. APPEAL OF WILLIAMS. (WILLIAMS APPEAL.)


COUNSEL

Harry A. Estep, Don F. D'Ivernois, Harry Weisberger, Pittsburgh, for appellant.

Frank W. Ittel, William E. Miller, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Ross

[ 174 Pa. Super. Page 572]

ROSS, Judge.

On June 2, 1950, the Board of Adjustment of the City of Pittsburgh granted an occupancy permit for a light machine shop to Oscar J. Glies as owner, and Harry C. Williams as lessee, of a building known as 519-521-523 Foreland Street. On August 21, 1950, Marie S. Ferraro protested the issuance of the permit, and on September 20, 1951, after hearings and an inspection of the premises, the Board of Adjustment entered an order directing the Bureau of Building Inspection to order cessation of the use of the premises as a machine shop. Further hearings were held on October 9, 1950 and on October 3, 1951, following which hearings on October 11, 1951, the Board of Adjustment reversed its earlier decision and dismissed the Ferraro protest.

The County Court of Allegheny County sustained the appeal of Marie S. Ferraro and reversed the Board of Adjustment. From that judgment Harry C. Williams has appealed to this Court.

The basic zoning ordinance of the City of Pittsburgh became effective August 9, 1923. 519-523 Foreland Street was, and is, located in a use district designated as 'A' Residence District. When the zoning ordinance was adopted the land was owned by Schuster Company, a wholesale grocery concern, which used it to garage and repair its own delivery trucks. The company's grocery business was conducted and merchandise stored at another location, some distance away.

The uses permitted by the ordinance in 'A' Residence District did not include that use to which the then-owner devoted the property when the ordinance was adopted. The grocery company was, however, entitled to continue to use its property as a place to store and repair its trucks under the non-conforming use provisions of the ordinance.

[ 174 Pa. Super. Page 573]

The evidence relative to the character of the operations conducted by the Schuster Company on the property at the time of the adoption of the zoning ordinance establishes that in 1923 the owner used the premises to store and repair 'four or five' trucks which it used in connection with its business and that no other trucks were garaged or repaired on the premises. Employed in the repair of the trucks were an 'air compressor and air hammer to knock tires off with', a 'crane to lift the motors out', a 'hydraulic press to press tires off', a brake lining machine and electric drills, 'hydraulic jacks, chain blocks, valve grinders'. The company apparently operated 'a fully mechanized shop for repairing trucks and cars'.

'Around 1925 or 1926' Oscar J. Glies became a tenant of the Schuster Company and so continued for a period of nine or ten years when the latter failed and Glies purchased the property at sheriff's sale. Glies testified that from 1925 or ยง 926 until 1946 he 'operated a repair shop, trucks, buses, cars or anything that came in; further, that he 'made more noise than my tenants [Williams] dared make; that in 1946 'I got my skull crushed and I sold out my business to Madison, who 'continued the same business I had; also started to sell used cars there which I did not do'; that Madison continued in possession for a 'couple of years' and then sold out to Clyde J. Boringer Corporation which 'kept the same kind of business and also put in heavy electrical equipment'. The Boringer Corporation failed in 1948 and Glies, again at sheriff's sale, purchased the premises, which, in July 1948, he leased to appellant.

Appellant testified with regard to the nature of his operations at the time of the hearings. He listed the various pieces of machinery installed and used by him in the operation of his 'shop'. The machinery was ...


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