Appeal from the Order of the Court of Common Pleas of Butler County in case of C. A. Snyder t/d/b/a Rush Motor Sales, Inc., v. Zoning Hearing Board of Borough of Zelienople and Elmer B. Peffer, et al., No. 139 December Term, 1973.
Frank P. Krizner, with him Lee C. McCandless and McCandless, Chew & Krizner, for appellant.
John L. Wilson, for appellees.
George H. Hancher, for intervening appellees.
Judges Kramer, Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 20 Pa. Commw. Page 140]
This is an appeal from an order of the Court of Common Pleas of Butler County affirming the decision of the Zoning Hearing Board of the Borough of Zelienople (Borough) which denied the application of C. A. Snyder (appellant) for a building permit to construct a private commercial parking and storage lot.
Our scope of review in zoning cases where, as here, the court below heard additional evidence is limited to a determination of whether or not the lower court committed an error of law or abused its discretion. Borough of Baldwin v. Bench, 11 Pa. Commonwealth Ct. 410, 315 A.2d 911 (1974).
The facts, which are not seriously in dispute, reveal that appellant is the sole stockholder and chief executive of Rush Motor Sales, Inc. (Rush Motor), a new-car sales agency. Rush Motor's lot (lot one) is located in an R-3 Residential zone and is therefore, under the ordinance, considered a nonconforming use. Because of pressure from Ford Motor Company to expand and because his current facilities were at maximum capacity, appellant
[ 20 Pa. Commw. Page 141]
individually purchased a converted residence (lot two) across the street from lot one. With the Borough's approval, appellant then demolished the existing structure on lot two. Subsequently, appellant individually applied for a building permit to construct a parking and storage facility on lot two.
Appellant's original application, which was in his name only, was for a special exception to the ordinance. During the course of the Borough's deliberations, the proceedings were properly modified to reflect an application for a variance for lot two in order to expand the nonconforming use of lot one. The Borough denied appellant's request for a variance and thereby effectively prevented the expansion of Rush Motor's nonconforming use. See Philadelphia v. Angelone, 3 Pa. Commonwealth Ct. 119, 280 A.2d 672 (1971). On appeal the lower court affirmed, finding that there was no hardship basis for granting a permit.
In addition to a minimal amount of evidence introduced to show the lack of adverse impact upon the neighborhood around lot two, most of the evidence presented to the Board and to the lower court in support of the variance was evidence that merely dealt with the possible hardship to lot one, ...