Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of Nicholas Mattero v. Township of Upper Chichester Zoning Hearing Board, No. 76-12583.
Clarence D. Bell, Jr., with him Bell, Berger & VanRensler, for appellant.
Peter J. Nolan, for appellee.
Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 38 Pa. Commw. Page 323]
This is an appeal from an order of the Court of Common Pleas of Delaware County dismissing the appeal of Nicholas Mattero (appellant herein) from the denial of a special exception or variance by the Upper Chichester Township Zoning Hearing Board (Board). We affirm.
Appellant is the owner of a lot in the township situate in an R-2 residential district under the township zoning ordinance upon which is located a dwelling and a detached garage. The structure which is the focus of this appeal is the garage, constructed by appellant's father-in-law and predecessor in title of the lot approximately 40 years ago. When appellant purchased this property in 1969 the garage had been used as an auto repair shop consistent with the zoning ordinance then in effect which classified the property in an industrial district. However, since the enactment of the current zoning ordinance in 1973, the repair garage, which is and has been continuously used by appellant to repair trucks in his general contracting business, has been a non-conforming use. Appellant has requested the Board grant a special exception or variance so that he can expand the garage from 36 feet by 25 feet and 18 feet in height to dimensions of 63 feet by 35 feet and 20 feet in height. Hearings were held on this request on May 6, 1976, June 3, 1976 and July 7, 1976.
At the May 6 hearing appellant testified that the increase in the area of the garage was needed to permit him to do repair work indoors rather than in open space adjacent to the existing garage and that he was presently unable to repair trucks using electrical equipment in inclement weather. He further testified
[ 38 Pa. Commw. Page 324]
that it was necessary to increase the height of the garage in order to accommodate larger trucks now used in his business. However, at the July 7 hearing appellant testified that the "only reason" he wanted to expand the garage was that he was not certain he would be able to retain a leasehold at another location in the township from which he also operated his contracting business.*fn1
The Board, in an opinion dated August 19, 1976, denied the application for a special exception pursuant to Section 703.B of the township zoning ordinance*fn2 on the grounds the proposed structure would be five feet higher than the 15 foot maximum allowable for detached garages in an R-2 district and that the construction would adversely affect the public health and safety.
Appellant contends that the Board abused its discretion in refusing to grant a special exception in order to expand his garage as a non-conforming use. As we understand the thrust of appellant's brief he ...