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UPPER DARBY TOWNSHIP APPEAL. (01/08/58)

January 8, 1958

UPPER DARBY TOWNSHIP APPEAL.


Appeal, No. 76, Jan. T., 1958, from order of Court of Common Pleas of Delaware County, March T., 1956, No. 309, in re Appeal of Associated Contractors, Inc. and G. & H. Steel Service, Inc. from the findings and order of the Board of Zoning Adjustment of the Township of Upper Darby, Delaware County, Pennsylvania. Order affirmed; reargument refused February 8, 1958.

COUNSEL

James A. Lynch, with him Paul R. Sand, for appellant.

R. Winfield Baile, with him James L. Shea, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 391 Pa. Page 349]

OPINION BY MR. JUSTICE MUSMANNO

In the year 1912 there rose on a lot at 336 Shadeland Avenue in Drexel Hill, Delaware County, a modest one story office building with a 30-foot front and a 28-foot depth. It was first and throughout its history mostly used as a real estate office, but at different times it lent itself to a dentist, a doctor, a medical laboratory, a sporting goods business organization, and a steel company firm. From 1939 to 1944, because of housing shortage due to the war, it was occupied as a residence. No one has taken the trouble to record what happened to it between 1915 and 1923, but, except for curiosity and historical completeness, the status of its occupancy during those eight years is of no importance in disposing of the legal fence which now surrounds the structure.

On April 5, 1938, the municipality of Upper Darby Township zoned the area in which the building is located as R-1 Residential. At the time of the enactment of the zoning ordinance, the building happened to be vacant and then from 1939 to 1944, as already indicated, the building served as a dwelling. From 1944, when the residential occupancy ceased, until the present litigation began, the Township did not object to the building being used as a medical laboratory, a sporting goods office, and a steel company office.

In July 1952, Associated Contractors, Inc. purchased the building and leased it to the G. & H. Steel Service, Inc., the current occupiers. Before G. & H. took possession, it applied to the Chief Building Inspector of Upper Darby Township for a permit to construct a 5 x 5-foot addition for washroom facilities.

[ 391 Pa. Page 350]

No one objected to the granting of the permit which recorded that the construction operation was in conformity with the zoning ordinance of the Township. The application for the permit specifically stated: "The present building is used as an office building."

Three years later the Township authorities were to deny that the building was an office building. On November 16, 1955, G. & H. made application for a permit to erect in the rear of the building an addition measuring 12 by 30 feet in order to accommodate filing cabinets made necessary because of the firm's expansion of business. The Board of Adjustment rejected the application. The lower court reversed and this appeal followed.

The principal question before us for determination is whether the addition applied for constitutes a normal expansion of a nonconforming use. It is difficult to see how it could be interpreted otherwise. During its whole life of 44 years the little structure in Drexel Hill was never regarded by the Township as anything other than an office building. At the time of the enactment of the ordinance in 1938 it had already been an office building for 26 years. The fortuitous ...


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