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PHILADELPHIA v. BUDNEY (05/28/59)

May 28, 1959

PHILADELPHIA
v.
BUDNEY, APPELLANT.



Appeal, No. 186, Jan. T., 1959, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1957, No. 2701, in case of City of Philadelphia v. Peter Budney et al. Decree affirmed. Equity. Before GUERIN, J. Adjudication filed enjoining defendants from using property for certain purposes; defendants' exceptions to adjudication dismissed and decree entered. Defendants appealed.

COUNSEL

Maxwell P. Gorson, for appellant.

Lenard L. Wolffe, Assistant City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Cohen

[ 396 Pa. Page 87]

OPINION BY MR. JUSTICE COHEN

This is an action in equity brought by the City of Philadelphia (city) to enjoin the Budneys, appellants,

[ 396 Pa. Page 88]

    from violating the city's zoning ordinance and from maintaining a nuisance. The alleged nuisance is a junkyard located at 4337-39 Bermuda Street in a "D" Residential District. Prior to this action, appellant was refused permission by the board of adjustment to operate this junkyard. From this determination, Budney took an appeal to Court of Common Pleas No. 2 of Philadelphia County, contending that he was entitled to either a variance or a permit for a nonconforming use, which was dismissed by the court. The appellant took no further action.

Thereafter, the city initiated this action when the appellant continued the use of the premises as a junkyard. The complaint alleged a violation of the zoning ordinance and maintenance of a nuisance. Appellant's answer averred the existence of a nonconforming use since June 15, 1931 as provided under Sect. 14-104 of the Code of General Ordinances of the City of Philadelphia. The court below ruled that the existence of a nonconforming use could not be set up as a defense in this action; whereupon, after hearing evidence, the court found both a violation of the zoning ordinance and a nuisance and enjoined the use of the junkyard. Exceptions to the chancellor's ruling were dismissed by the court en banc and this appeal followed.

Appellant argues that the lower court was in error when it refused to permit the introduction of the defense of the existence of a nonconforming use. It is the opinion of this Court that there is no merit in this contention.

This was an action brought by the city to enforce a determination made under its zoning ordinance. Appellant now seeks to use this proceeding to raise the same issue after it had been previously raised before the board of adjustment and after the ...


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