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JAMES GUSTIN v. ZONING HEARING BOARD SAYRE BOROUGH (12/17/80)

decided: December 17, 1980.

JAMES GUSTIN, APPELLANT
v.
ZONING HEARING BOARD OF SAYRE BOROUGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bradford County in the case of James Gustin v. The Zoning Hearing Board of Sayre Borough, No. 79-3196.

COUNSEL

David B. Keeffe, DeSisti, Keeffe and Rosh, for appellant.

Jonathan P. Foster, Riffle and Foster, for appellee.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 55 Pa. Commw. Page 411]

Owner James Gustin appeals from an order of the Court of Common Pleas of Bradford County which affirmed the denial, by the Zoning Board of Sayre Borough (board), of his application for a permit to install self-service gas pumps on his property located in Sayre Borough.*fn1

[ 55 Pa. Commw. Page 412]

The owner operates a grocery store, which he calls a "convenience store," on the property at issue. Under the Sayre Borough Zoning ordinance enacted in March 1976, the owner's property is located in an R/S Residential District. Neither convenience stores nor gasoline stations are permitted uses in the R/S district. However, there is no question that the owner operated his store at its present location before the ordinance was enacted and therefore it became a lawful nonconforming use in the R/S district.

The owner's proposal to add self-service gasoline pumps is part of his request for permission to remodel the store building.

Here the owner contends that the board's refusal to issue him a permit to construct gas pumps at his store constituted an illegal deprivation of his constitutional right to a reasonable expansion of his nonconforming use. Appeal of Carr, 30 Pa. Commonwealth Ct. 342, 374 A.2d 735 (1977). However, in expanding, an owner cannot establish a use different in nature from what was originally contemplated as the nonconforming use. In Re Mignatti's Appeal, 403 Pa. 144, 168 A.2d 567 (1961).

Thus we must decide whether adding the retail sale of gasoline involves a use different from the existing one.

We must look to the applicable zoning ordinance's structure as our chief guide with respect to how uses are categorized for the particular municipality. Appeal of Russian Orthodox Church of Ambridge, 397 Pa. 126, 152 A.2d 489 (1959); see R. Ryan, Pennsylvania Zoning Law and Practice ยง 4.2.1 (1970).

Here the zoning ordinance lists "convenience goods stores" as an allowable category of special use in the R/R Residential District and R/T Residential District, while it allows "Gasoline stations" in C/H ...


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