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MICHAEL C. DINARDO v. CITY PITTSBURGH (09/30/74)

decided: September 30, 1974.

MICHAEL C. DINARDO, APPELLANT,
v.
CITY OF PITTSBURGH, APPELLEE



Appeal from the order of the Court of Common Pleas of Allegheny County in case of Michael C. DiNardo v. City of Pittsburgh, No. S.A. 239 of 1971.

COUNSEL

Martin W. Sheerer, with him Dillman, Sheerer & Schuchert, for appellant.

D. R. Pellegrini, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 15 Pa. Commw. Page 281]

This is an appeal from an order of the Court of Common Pleas of Allegheny County affirming a decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) which, after granting a hearing, denied the application of the appellant Michael C. DiNardo for an occupancy permit based upon a nonconforming use.

DiNardo appeals as the owner of an undeveloped parcel of land acquired in 1957 in the Fourth Ward of the City of Pittsburgh. He is also an officer and shareholder of Fred DiNardo & Sons, Inc., a construction contracting firm, which has used the land, probably since 1953, for the storage of construction materials and heavy equipment. In 1960 DiNardo had obtained a City building permit permitting him to excavate the slope on the land and to construct a retaining wall at one end, thus making the property more suitable for the use to which it was then being put.

The Zoning Code of May 10, 1958, Ordinance No. 192, classified the property here concerned as Residential 4, and the earlier Zoning Code of August 9, 1923, Ordinance No. 372, had similarly classified the property as Class A, Residential. The present use of the property, therefore, was not permissible under either Code. After complaints arose with regard to the use of the property, an application was made to the zoning administrator in 1971 for an occupancy permit, which indicated

[ 15 Pa. Commw. Page 282]

    that the property was being used pursuant to a valid nonconforming use. This application was denied on January 26, 1971, and, after an appeal was filed, a hearing was conducted on February 11, 1971 before the Board and testimony was taken. Within three weeks, the Board denied the permit, and an appeal to the Court of Common Pleas followed. Without taking additional testimony, the lower court affirmed the Board's ruling, and DiNardo then appealed to this Court.

In a zoning case where the court below has taken no additional testimony, our review is limited to a determination as to whether or not the Zoning Board has abused its discretion or committed an error of law. AFSO Builders, Inc. v. The Zoning Hearing Board of the Township of Upper Darby, 12 Pa. Commonwealth Ct. 100, 314 A.2d 860 (1974). The appellant herein contends that the Board did commit an abuse of discretion when it concluded that a valid nonconforming use had not been established, and that such a conclusion was not supported by competent testimony. He also contends that the Board and the court below both misapplied the law in concluding that there had been an unlawful enlargement of a nonconforming use.

Our review of the record reveals, unfortunately, that the Board's written decision refusing the occupancy permit does not expressly indicate that a nonconforming use had not been created. If, in their opinion, such a use had been created, the Board then failed to indicate expressly that the evidence established an abandonment of the use or a change in the use, either of which would have constituted sufficient reasons to deny the appellant's application. Nevertheless, in spite of these shortcomings in the Board's ruling, it had sufficient evidence, as ...


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