Appeal from the Order of the Court of Common Pleas of Fayette County in case of Commonwealth of Pennsylvania v. Mike Abbot, No. 219 of 1979 S.D.
Paul V. Mahoney, Buck, Margolis, Mahoney & George, for appellant.
Gerald R. Solomon, District Attorney, for appellee.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Palladino.
[ 56 Pa. Commw. Page 483]
This is an appeal by Mike Abbot (appellant) from an order of the Court of Common Pleas of Fayette County which found appellant guilty of a summary violation of the Fayette County Zoning Ordinance (ordinance). The offense charged to appellant was for "[o]peration of business in incorrect zone without required zoning certificate." The lower court, after a hearing de novo, found that the appellant's use of the subject premises constituted an improper change and extension of a prior nonconforming use and, as such, was violative of the ordinance. We affirm.
In January, 1963, Fayette County passed an ordinance designating the area in question as R-2 (Medium Residential). The lower court found that for several years prior to the enactment of the ordinance, the premises were used by the owners, Mr. and Mrs. Hill, "for the purpose of repairing and maintaining trucks, vehicles and construction equipment, welding, body work, mobile homes, cement work, a car wash, construction of special equipment, rental work and a machine shop. . . ." The lower court further concluded from the evidence presented that the vast majority of maintenance and repair work was performed on equipment and vehicles owned by the Hill Equipment Company, a corporation solely owned and operated by Mr. and Mrs. Hill, and not for the benefit of the general public. It is undisputed that upon the death of her husband in 1976, Mrs. Hill leased the premises first to a Mr. Nedrow and later to the appellant, and that both tenants used the property to operate an auto body repair shop which was open to the general
[ 56 Pa. Commw. Page 484]
public. While the lower court admits that a valid nonconforming use may have existed after passage of the ordinance in 1963, such use was for the maintenance and repair of vehicles owned by the Hill Equipment Company, and does not include an auto body shop which solicits its entire volume of business from the general public.
Appellant raises two issues for our consideration: (1) Was there substantial evidence to support the lower court's finding that the premises were used substantially for the maintenance and repair of vehicles owned by Hill Equipment Company; and (2) Is the current use of the property an improper extension of a prior nonconforming use which would prohibit appellant from conducting business without first obtaining a zoning permit.
After a careful review of the testimony presented, we believe that there was substantial evidence to support the lower court's finding. Mrs. Hill testified on cross-examination that in addition to storing and repairing vehicles belonging to Hill Equipment Company, Mr. Hill was willing to repair private vehicles "[i]f he had the time to fit it into his schedule. . . ." The fact that Mr. Hill accepted business from the general public only when his schedule permitted leads us to believe that the bulk of his time was spent maintaining his own vehicles. In addition, Mr. Nagle, a neighbor who testified for the Commonwealth, stated that to his knowledge there was never a public auto body shop on the property prior to the appellant's lease of the premises.
Where the lower court received additional evidence, we must affirm unless that court abused its discretion or committed an error of law. Baird v. Slippery Rock Borough Zoning Board, 20 Pa. Commonwealth Ct. 236, 340 A.2d 904 (1975). The ...