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DAYNE BAIRD v. ZONING BOARD ADJUSTMENT SLIPPERY ROCK BOROUGH (07/14/75)

decided: July 14, 1975.

DAYNE BAIRD, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF SLIPPERY ROCK BOROUGH, PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Butler County in case of Dayne Baird v. Zoning Board of Adjustment of Slippery Rock Borough, Pennsylvania, No. A.D. 160 June Term, 1971.

COUNSEL

Gary L. Farren, for appellant.

Robert F. Hawk, for appellee.

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

Author: Kramer

[ 20 Pa. Commw. Page 238]

This is an appeal by Dayne Baird (Baird) from an order dated May 22, 1974, of the Court of Common Pleas of Butler County affirming an adjudication of the Zoning Board of Adjustment (Board) of Slippery Rock Borough (Borough) which, in effect, determined that Baird could not continue the use of his property as a rooming house because of an adandonment of such nonconforming use for more than one year.

For an understanding of our decision in this case we must set forth certain pertinent facts. The property in question is a frame dwelling house commonly known as 328 South Main Street, located in the Borough of Slippery Rock. In 1965 the property was owned by James G. Bouch (Bouch) who entered into a lease with a fraternity representing students at Slippery Rock College for a five-year term commencing October 1, 1965 and ending September 30, 1970. For reasons not specifically stated in the record, a dispute arose between Bouch and the fraternity. On November 21, 1969, the Borough shut off the water supply to the property on the request of some unknown person. The fraternity which occupied the house had been responsible for the water bills, and apparently those bills had all been paid at the time of the hearing. At the request of Bouch, on November 22, 1969, water service was reinstituted in the name of Bouch. At that time a water meter reading was made, which revealed that, for a period of 21 days, persons occupying the property had consumed 9,000 gallons of water, indicating to the Borough that the property was occupied by a number of people in excess of what it considered average family usage.

The record is not specific with regard to when the fraternity students left the premises, but, in any event, the

[ 20 Pa. Commw. Page 239]

    record is quite clear that during the month of July 1970, Baird, together with his brother and two other persons, occupied the premises pursuant to an oral lease with Bouch under which Baird was to pay $20 a month and make certain repairs. The record is also clear that the fraternity had left the premises in a state of shambles.

On September 22, 1970, the water meter was again read, indicating that for the 10-month period beginning November 22, 1969, the occupants of the building used only 3,000 gallons of water. On this later date, September 22, 1970, the water service was again terminated. On December 31, 1970, at the request of Baird, the water service was restored. It should be noted at this point that on July 27, 1970 Bouch wrote a letter to David Baird, the appellant's brother, verifying the terms of the lease mentioned above and noting that any further negotiation concerning rental would be subject to the then existing lease with the fraternity. Bouch's letter also pointed out that there was litigation prohibiting him (Bouch) from doing "anything" until October 1, 1970. On December 31, 1970, Bouch conveyed the property to the two Baird brothers. The deed contains a proviso permitting Baird to void the deed if Baird could not continue to use the premises as "a rooming or boarding house."

On January 19, 1971, the Borough, through E. A. Fleeger (Fleeger), its "zoning and housing official," issued an "order to remedy violation" in which Baird was given notice that "an apparent attempt is being made to re-establish a use not permitted in the R-3 zone -- 2) an apparent attempt is being made to occupy this structure as a Rooming House without the required Rooming House Occupancy Permit. in violation of 4.130 and 7.310 Sections of ...


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