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SOJTORI v. ZONING HEARING BOARD AND MOYER (11/10/72)

decided: November 10, 1972.

SOJTORI
v.
ZONING HEARING BOARD AND MOYER, ET AL., INTERVENORS



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Joseph A. Sojtori, Sr. v. Douglass Township Zoning Hearing Board, No. 71-6967.

COUNSEL

Lawrence Sager, with him Sager and Sager, for appellant.

Sherwood L. Yergey, with him Kranzley, Wrigley, Yergey & Daylor, for appellee.

David L. Allebach, Jr., with him Ronald H. Reynier and Reynier and Crocker, for intervenors.

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

Author: Blatt

[ 6 Pa. Commw. Page 553]

Joseph A. Sojtori, Sr. (Sojtori) is the owner of a tract of land in Douglass Township (Township), on which are located a dwelling house and a garage. The dwelling house is vacant, but the garage is used for the storage and service of as many as four tractor trailers which Sojtori uses in his business. Prior to Sojtori's acquisition of the land in 1969, it was subject to a nonconforming use permit which allowed the sale, repair and maintenance therein of electrical equipment, electrical machinery and other small machines and equipment. On December 29, 1969, he received a building permit from the Township for the installation of new ten-by-fourteen-foot garage doors and for the construction of a new parking lot and driveway on the premises, and he at once proceeded with this work.

Early in 1971, Sojtori was notified that the repair and parking of tractor trailers was a non-conforming use in the R-2 Residential District in which his land was located and that, therefore, any such activity must cease. When he applied to the Zoning Hearing Board (Board) for a special exception, he argued that his property was in fact located in a C-1 Commercial District,

[ 6 Pa. Commw. Page 554]

    but the Board denied the request, finding that his property was in an R-2 District. He then appealed to the Court of Common Pleas of Montgomery County, again alleging that he was entitled to a special exception and also arguing that, inasmuch as the same attorney had represented both the Township and the Board in regard to his appeal, he had thus been denied a fair hearing. He claimed, besides, that he had a vested right to use the property for the purpose of servicing his trucks because this was a continuation of the non-conforming use to which the property had previously been subject. The lower court, without taking any new testimony, found against Sojtori on all points and affirmed the action of the Board.

On his appeal to this Court, Sojtori does not dispute any of the rulings of President Judge Groshen's well reasoned opinion in the lower court. Instead, Sojtori now raises the argument, for the first time during these proceedings, that he is entitled to repair and store his trucks on this property as an accessory use to the use of the dwelling house on the property. He notes that Section 700 of the Township Zoning Ordinance permits accessory uses to single family dwellings in an R-2 District, while Section 1405(2)(a) provides that such accessory uses include use as a private garage. He also notes that a private garage is defined in Section 200(14)(a) of the Ordinance as: "An accessory building or a part of a principal building used for the storage of motor vehicles owned and used by the owner or tenant of the premises, and for the storage of not more than two (2) motor vehicles owned and used by persons other than the owner or tenant of the premises. Not more than two (2) commercial vehicles or trucks may be stored in a private garage." Sojtori contends, therefore, that his use of the garage is an accessory one, because there is a dwelling house on the land, and

[ 6 Pa. Commw. Page 555]

    that, inasmuch as Section 200(14)(a) of the Ordinance permits him to store commercial vehicles there, this right to store them would surely include the ...


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