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TOWNSHIP HAVERFORD v. ANNA T. SPICA (11/27/74)

decided: November 27, 1974.

TOWNSHIP OF HAVERFORD, APPELLANT,
v.
ANNA T. SPICA, APPELLEE



Appeal from the Order of Court of Common Pleas of Delaware County in case of Anna T. Spica v. The Zoning Hearing Board of the Township of Haverford, No. 8585 of 1973.

COUNSEL

E. J. O'Halloran, with him, of counsel, O'Halloran, Stack, Smith & Ginley, P.C., for appellant.

Jackson M. Stewart, Jr., with him Richard H. Gross and Natale, Zetusky & Stewart, for appellee.

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

Author: Kramer

[ 16 Pa. Commw. Page 327]

This is an appeal from an order of the Court of Common Pleas of Delaware County, dated December 18, 1973, which reversed an order of the Zoning Hearing Board (Board) of Haverford Township (Township) dated May 24, 1973. The Board's order denied a request by Anna T. Spica (Spica) "to establish a nonconforming use and/or variance." The lower court's opinion stated, alternatively, that the Board had erred legally in determining (1) that a valid nonconforming use had not been established; and, (2) that a variance should not be granted. The Township has appealed to this Court.

From the Board's findings, it appears that the property in question was first zoned residential "A" in 1925, and is still so classified. The record does not establish the use of the property before the effective date of the 1925 ordinance. Whether it was used for

[ 16 Pa. Commw. Page 328]

    residential, commercial or no use at that time is unknown. In 1938 the Township issued a building permit for this property, allowing for the construction of a four room, one-story office structure. The 1938 records of the Township designate the proposed use as "real estate office" and these records have been in the custody of the Township since the permit was issued. There is nothing in the record to indicate that it was improper to issue the permit, and, certainly there is a rebuttable presumption that the official issuing the permit acted properly. Mamallis v. Millbourne Borough, 401 Pa. 375, 164 A.2d 209 (1960).

The building proposed in 1938 was erected in that year, apparently in violation of the existing zoning restrictions, and was, in fact, used as a real estate office until 1946, when it was purchased by a dentist for use as a professional office. In 1967 Spica and her husband (a certified public accountant) purchased the property, and Mr. Spica conducted his accounting practice there until his death in November 1971. After Mr. Spica's death, his wife used the premises to "wind up" her late husband's business, and this activity included some use of the structure by a Mr. Albert P. Stagliano, a certified public accountant, who purchased Mr. Spica's practice after his death. On or about March 1, 1973, Spica applied to the Township Building Inspector for permission to lease the premises as a professional office. The Building Inspector refused to issue an occupancy permit, and Spica (at this time unrepresented by counsel) at the suggestion of the inspector, applied to the Board for a variance and a special exception to enable her to continue use of the premises as a professional office building. Both applications were denied by the Board after hearing.

From the record it seems that the action of the Building Inspector was the first official action taken by the Township (with respect to the building's apparent

[ 16 Pa. Commw. Page 329]

    nonconformance with the applicable use restrictions) since the original building permit was issued in 1938. As noted above, the 1938 permit was issued with ...


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