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GRACE BUILDING CO. v. ZONING HEARING BOARD CITY ALLENTOWN AND CONCERNED CITIZENS NINTH WARD ET AL. (10/19/78)

decided: October 19, 1978.

GRACE BUILDING CO., INC., APPELLANT
v.
ZONING HEARING BOARD OF THE CITY OF ALLENTOWN AND CONCERNED CITIZENS IN THE NINTH WARD ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Grace Building Co., Inc. v. Zoning Hearing Board of the City of Allentown and Concerned Citizens in the Ninth Ward, Earle G. Crist, Jr., Wilma J. Schlosser, Richard G. Washburn, Henry S. Geary, Joseph C. Groff, Mary Taylor and Donald Hall, No. 322 June Term, 1975.

COUNSEL

Alfred O. Breinig, Jr., for appellant.

Paul A. McGinley, for intervenors.

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

Author: Blatt

[ 38 Pa. Commw. Page 194]

The Grace Building Co., Inc. (appellant) appeals here from an order of the Court of Common Pleas of Lehigh County which affirmed a decision of the Zoning Hearing Board of the City of Allentown (Board). The Board denied the appellant a permit to continue the nonconforming use of its property as a social club on the basis that this use had been abandoned.

The property concerned is a building which was used as a social club for nearly 50 years, from 1923 to 1972, by the Knights of St. George Home Association Inc. (Knights). It contains a social room, bar facilities, a kitchen and dining area, bowling alleys and a meeting room, and it was purchased by the appellant in 1971, with the Knights still continuing to lease and use it as a social club. On March 6, 1972, however, the building was closed as the result of a robbery and the Knights' lease was terminated on May 17, 1972.*fn1

[ 38 Pa. Commw. Page 195]

Sometime after the termination of the lease, the appellant listed the property for sale with local realtors, and an agreement of sale was entered into about a year later, with the Black Improvement Group (B.I.G.). Settlement of the sale was never reached because of financing difficulties, but a lease agreement was finally executed by the appellant with B.I.G. on March 27, 1974. Meanwhile, in December of 1973, the Ebony Social Club (Club), which was apparently an affiliate and subsequent sub-tenant of B.I.G., entered into an agreement of sale for the purchase of the liquor license which was still held by the Knights and began monthly meetings in the building in February of 1974. Sometime in March of 1974, B.I.G. had a notice posted on the building of its intent to resume the social club use upon the premises and an application for the transfer of the license to the Club was made to the Pennsylvania Liquor Control Board (LCB), during the month following. The Club held a social function in the building in May. The appellant's request for a zoning permit authorizing the continuation of a nonconforming use was denied by the Zoning Officer in October of 1974, and this action was affirmed by the Board. The lower court affirmed the Board's ruling and this appeal followed.

Our scope of review, where no additional evidence was presented to the lower court, is to determine whether or not the Board abused its discretion or committed an error of law. Camaron Apartments Inc. v. Zoning Board of Adjustment, 14 Pa. Commonwealth Ct. 571, 324 A.2d 805 (1974).

The property here concerned is located in a zone described as R-H Residential in Allentown's zoning ordinance, which permits a social club only as a special exception in such a zone. It is uncontested, however, that, while the property was used as a social club, this

[ 38 Pa. Commw. Page 196]

    was a valid nonconforming use, for it had lawfully existed prior to the enactment of the zoning ...


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