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TOWNSHIP LOWER YODER v. LESTER J. WEINZIERL (04/22/71)

decided: April 22, 1971.

TOWNSHIP OF LOWER YODER
v.
LESTER J. WEINZIERL, ET UX.



Appeal from the order of the Court of Common Pleas, Civil Division, of Cambria County, No. 1011 June Term, 1969, in case of In Re: Appeal of Lester J. Weinzierl and M. Eileen Weinzierl, from a decision of the Board of Zoning Appeals (formerly the Board of Adjustment) of the Township of Lower Yoder. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Samuel R. DiFrancesco, Sr., with him DiFrancesco & DiFrancesco, for appellant.

Edward G. Kuyat, Jr., with him Franke, Ayres, Hager, Kuyat & Walker, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 2 Pa. Commw. Page 290]

Appellant, Lower Yoder Township, has appealed an order of the Court of Common Pleas of Cambria County which granted the expansion of a nonconforming use in that township. We affirm.

The Weinzierls are owners of a lot in Lower Yoder Township, Cambria County, upon which they presently have a garage building thirty by forty feet, housing an auto body business known as Westwood Auto Body. The business has been operating since 1958 and has been a nonconforming use since the enactment of the township zoning ordinance, February 1, 1960. The owners have requested a permit to expand the use of their building forty by thirty-three feet but were denied the permit by the Board of Zoning Appeals.

An appeal was taken to the Court of Common Pleas of Cambria County, whereupon an evidentiary hearing

[ 2 Pa. Commw. Page 291]

    was held. Considering the permit request on its merits, the court below held as follows: "The petitioners have submitted a plan of improvement that will be an asset and beautification to the area and the community over what presently exists on said premises. We find that the proposed enlargement is a reasonable enlargement of an existing structure, and is to be erected on the same lot or plot of ground where present building is, even though located in a district restricted against said use . . . and that such enlargement will not be detrimental to, or tend to alter the character of the neighborhood. We find that said proposed enlargement should be permitted as provided under section 34(d)4 of the ordinance. . . . We find the petitioners' desired expansion or enlargement as requested is required by the natural expansion and growth of trade, and that the extension does not go beyond what is necessary to protect the original property interests."

Since testimony was taken by the court below, our task on appeal is to consider whether the court, not the board, manifestly abused its discretion or committed an error of law. Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958). We hold that the lower court did not err.

[ 2 Pa. Commw. Page 292]

Appellant, Lower Yoder Township, raises four questions of fact and one of law in its appeal. Factually, the township contends the following: (1) The extension is an unreasonable enlargement of noise, dust, fumes and air pollution; (2) The extension is not required by the business; (3) The extension is detrimental to the neighborhood; and (4) The extension would decrease the value of the neighboring properties. Sufficient testimony, some of it conflicting, relating to all of these issues was presented before the court below. Where that court has reached a conclusion based upon that evidence, we cannot substitute our own judgment short of finding a ...


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