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VICTOR MARZO AND JENNIE MARZO v. ZONING HEARING BOARD ABINGTON TOWNSHIP AND JOSEPH AND ETHEL BRADY. TOWNSHIP ABINGTON (05/18/77)

decided: May 18, 1977.

VICTOR MARZO AND JENNIE MARZO, HIS WIFE, APPELLANTS
v.
THE ZONING HEARING BOARD OF ABINGTON TOWNSHIP AND JOSEPH AND ETHEL BRADY. TOWNSHIP OF ABINGTON, INTERVENING APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Victor and Jennie Marzo v. The Zoning Hearing Board of Abington Township and Joseph and Ethel Brady, No. 75-6824.

COUNSEL

Jeremiah J. Cardamone, with him Timoney, Knox, Avrigian & Hasson, for appellants.

James W. Brown, Jr., for appellee.

Daniel B. Michie, Jr., with him Fell, Spalding, Goff & Rubin, for intervening appellee.

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

Author: Wilkinson

[ 30 Pa. Commw. Page 227]

Appellants appeal a decision of the Montgomery County Court of Common Pleas which affirmed appellee's refusal of their application to continue a radiator repair business in the garage of their residence located within a residential zone. We affirm.

The parties have submitted an agreed-upon statement of the case. Appellants own and occupy property within a residential zone which is improved with a single-family detached dwelling and a detached wooden garage located 12 to 13 feet from the rear property line. Within the garage, although no sign on the premises indicates its existence, appellants have operated a shop for the repair of automobile radiators for at least ten and perhaps 15 years as of 1975. Appellants admit that the shop has always been in violation of the local zoning ordinance and does not constitute a nonconforming use.

Sometime in 1966, intervening appellee's then zoning officer sent a letter to appellants concerning the zoning violation. No further action was taken by either appellee or intervening appellee until January 24, 1974, when the present zoning officer advised appellants that the shop was in violation of the zoning ordinance. On September 23, 1974, the zoning officer sent appellants a certified letter citing the violation and giving them 30 days in which to relocate the business.

Appellant-husband testified that the intervening appellee had taken no action against him since the

[ 30 Pa. Commw. Page 228]

    letter nine years before, even though it had actual notice of his operation subsequent to that time because he had performed repairs on some of its vehicles. It developed, however, that he had done such work for another commercial facility where intervening appellee regularly sends its trucks for repairs.

At the hearing 35 persons signed as being opposed to the application and ten as in favor. Appellants' next-door neighbor testified that to the best of his recollection the shop had been in existence no more than 12 years. His wife testified that it was only in operation ten years. She testified further that the shop was operated seven days a week at varying hours (including some evenings) and that it constituted a fire hazard. Both stated ...


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