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JOSEPH MARCHESE AND SAMUEL MONASTERO v. NORRISTOWN BOROUGH ZONING BOARD ADJUSTMENT (05/10/71)

decided: May 10, 1971.

JOSEPH MARCHESE AND SAMUEL MONASTERO
v.
NORRISTOWN BOROUGH ZONING BOARD OF ADJUSTMENT



Appeal from the order of the Court of Common Pleas of Montgomery County, Civil Division, No. 68-8001, 1968 in case of In re: Appeal of Joseph Marchese and Samuel Monastero from the Decision of the Norristown Borough Zoning Board of Adjustment.

COUNSEL

Edward F. Kane, with him Bean, DeAngelis, Kaufman & Giangiulio, for appellants.

George C. Corson, Jr., with him Wright, Spencer, Manning & Sagendorph, for appellee.

George C. Corson, Jr., with him Frank X. Fornetta and Michael Alba for intervening appellee.

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

Author: Mencer

[ 2 Pa. Commw. Page 86]

A nuisance may be merely a right thing in the wrong place -- like a pig in the parlor instead of the barnyard.*fn1 Legally speaking, no nuisance is involved here; instead, this is an appeal from an Order of the Court of Common Pleas of Montgomery County affirming the Norristown

[ 2 Pa. Commw. Page 87]

Zoning Board of Adjustment and holding Joseph Marchese, the owner-appellant, had lost his right as a nonconforming user by reason of abandonment. Plainly speaking, the objectionable creature here is a one-story garage, forty-five feet by sixty feet, used for the storage and minor maintenance of trucks and contracting equipment and presently rented by appellant Samuel Monastero; the "parlor" is the residential area in which the garage is located at 816-818 High Street, Norristown, Pennsylvania.*fn2

On February 26, 1968, Frank Tornetta and Michael Alba, residents of the neighborhood surrounding the garage, filed an appeal with the Norristown Borough Zoning Board of Adjustment seeking a prohibition of the use to which appellant Monastero was making of the garage. They claimed, under Article IV, Section 19(5) of the Borough Zoning Ordinance, that the nonconforming use of the building had been discontinued for a period of at least one year.

Following a hearing, the Board, on May 16, 1968, rendered a decision holding that it had not been definitely proven that the use of the property had been discontinued for a period of at least one year. It did hold, in keeping with Article IV, Section 19(4) of the

[ 2 Pa. Commw. Page 88]

Ordinance, that the original nonconforming use (daily parking and maintenance of contractor's trucks and equipment) had been changed to a more restricted use (the seasonal storage of specialty contracting equipment with infrequent minor maintenance work), and, therefore, permission for the less restricted use of daily parking and garaging of commercial vehicles was denied.

Appellants then appealed to the Court of Common Pleas of Montgomery County which, after argument before the Court en banc, by Order dated January 9, 1969, remanded the matter to the Board specifically for the taking of testimony concerning the operation of the garage during the period between February 1, 1960, and February 15, 1964, for a finding of fact as to whether or not the use during that period constituted an abandonment of the nonconforming use. Following the second hearing, the Board, on April 8, 1969, came to the following conclusions: "The Board has weighed the evidence from both sides and is of the opinion that the garages were virtually abandoned during the years 1962, 1963 and 1964. The testimony from the residents has convinced the Board that the garages were put to no use at all from the fall of 1961 until the Monastero trucks moved in on January 9, 1968. The Board therefore concludes that the owner lost his privilege as a nonconforming user by reason of abandonment." (Emphasis added.) Thereafter, the lower court in an Opinion and Order dated August 20, 1970, affirmed the decision of the Board and held that the owner lost his right as a nonconforming user by reason of abandonment. This appeal followed.

The appeal was heard in the court below upon the record made before the Board in the two hearings. The relative weight to be given the conflicting testimony in the record was a question for the Board as the triers of fact and may not be disturbed unless we should

[ 2 Pa. Commw. Page 89]

    find in our review that the Board abused its discretion or committed an error of law in arriving at its final decision.

The question of abandonment, being a question of fact, depends on a weighing of all the various factors present in an individual case. See Annot., 18 A.L.R. 2d 725 (1951). The essential facts of this case can be divided into five specific time periods:

1920-1955. In 1920, the garage (subsequently one garage with two smaller additions) in question was built by appellant Marchese's father who used the structure to house dump trucks and flat bed trucks and other equipment. The elder Marchese died in 1948 and his sons took over and extended the business to include bulldozers, loaders and some thirty-five trucks until, as Mr. Marchese testified, "The place got too small for us so we got larger quarters on Ridge Pike. We moved the majority of our equipment to Ridge Pike in 1955."*fn3

1955-February 1, 1960. With the bulk of their equipment and business elsewhere in Norristown, Marchese Brothers used the garage for storage of "slurry-seal" trucks and other contracting equipment and did some repair work on the same "during the winter months when our outside work slowed up." During this period, at least one friend of the Marcheses stored some of his contracting equipment in the garage also.

February 1, 1960 -- Autumn, 1963. On February 1, 1960, Marchese entered into a lease agreement with Mobile Units Co. of Conshohocken, Pennsylvania, whereby the latter was to pay $150.00 per month rent to the former on a month to month basis. Mobile Units' intended use of the garage was termed in the lease as

[ 2 Pa. Commw. Page 90]

"light industrial", and the company in fact began "installing ice cream equipment in trucks" (as the insurance policy taken out by Mobile Units described it) or an "assembly-fabricating type of thing" (as counsel for appellants dubbed it). Specifically, the garage was used to install refrigeration equipment, which the company obtained elsewhere, onto small ice cream vending vehicles owned in most instances by other individuals. The "Good Humor" type trucks would be brought to the garage by their owners, Mobile Units would install the refrigeration equipment within a few days, and then the trucks would leave the garage.

The lease allegedly continued until February, 1964, but there is ample testimony in the record that Mobile Units effectively ceased fabricating in late 1961 after approximately seven months of operation. Marchese received rent until June, 1963, whereupon Mobile Units went bankrupt in late 1963 or early 1964, finally "left" the garage about January, 1964, and may or may not have paid the total rent due to Marchese. There is some indication that Mobile Units left some equipment in the building until its final departure, and an insurance broker testified that he saw activity in the garage as late as 1962 and 1963. Marchese testified that Mobile Units was still in operation at the garage in 1963 if only by using the building for storage of a small ice cream truck or two which it had purchased and equipped in the hope of selling outright.

At least four persons, who either owned homes immediately adjoining the garage or who lived close by in the neighborhood, gave convincing testimony that Mobile Units left permanently after the summer of 1961 (the departure made poignant because a prominent member of the immediate neighborhood died in June, 1961, and activity by Mobile Units was not observed much ...


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