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TOWNSHIP WEST DEER v. ROBERT H. BOWMAN AND FRANK HECK (03/07/75)

decided: March 7, 1975.

THE TOWNSHIP OF WEST DEER, APPELLANT,
v.
ROBERT H. BOWMAN AND FRANK HECK, JR., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Robert H. Bowman and Frank Heck, Jr. v. Zoning Hearing Board of West Deer Township, No. SA 66 of 1972.

COUNSEL

John H. Bingler, Jr., with him Thorp, Reed & Armstrong, for appellant.

Frank P. Paz, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 17 Pa. Commw. Page 579]

The appellant, the Township of West Deer, Allegheny County, adopted a zoning ordinance in 1966 by which a property owned by the appellee, Frank Heck, Jr., and

[ 17 Pa. Commw. Page 580]

    occupied as a residence by the family of Heck's son-in-law, the appellee, Robert H. Bowman, was placed in a zoning district in which only residential uses were permitted.

In 1968, Bowman made improvements to a shed on the property, in which he first went into the business of repairing motorized lawn equipment and later took on for sale from the premises minibikes, chain saws and lawn equipment. Bowman seems to have demonstrated the mini-bikes on his own property and that of neighbors.

In 1971 the township authorities, seemingly at the instance of complaining neighbors, notified Bowman that he was in violation of the zoning ordinance. Heck and Bowman applied for a variance to carry on all of the activities above described. This was refused by the zoning officials of the township and on appeal by the Zoning Hearing Board. Heck and Bowman appealed to the Allegheny County Common Pleas Court, which after a trial de novo, granted a variance for the conduct of the business of repairing lawn mowers and farm machinery but denied a variance for the distribution, sale or repair of motorcycles or mini-bikes. The township has appealed.

No constitutional issue is presented. The appellees' case for a variance depended on evidence that the township and their neighbors did not object when Bowman converted the shed to his commercial activities or until he went into the mini-bike business; that there are other nonconforming commercial businesses in the vicinity;*fn1 that the neighborhood would not be harmed by Bowman's activities; and that it would be beneficial to Bowman to continue in business. A real estate agent who testified for the appellees at the hearing below declared that the Bowman sales and service facility is neat and, in his opinion, not detrimental to other properties in the area. This expert did not testify that the property was not physically adapted for continued exclusively residential

[ 17 Pa. Commw. Page 581]

    use or that the characteristics of the neighborhood were such that the property was ...


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