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MARSHALL CHEVROLET v. ZONING HEARING BOARD CITY READING (03/17/81)

decided: March 17, 1981.

MARSHALL CHEVROLET, INC., APPELLANT
v.
ZONING HEARING BOARD OF THE CITY OF READING, BERKS COUNTY, PENNSYLVANIA AND MASANO REALTY, INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Berks County in the case of Marshall Chevrolet, Inc. v. The Zoning Hearing Board of the City of Reading, Berks County, Pennsylvania and Masano Realty, Inc., No. 65 October Term, 1978.

COUNSEL

Franklin E. Poole, III, for appellant.

Calvin Lieberman, for appellee.

Eugene C. LeManna, Austin, Boland, Connor & Giorgi, for intervenor.

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

Author: Craig

[ 57 Pa. Commw. Page 525]

Marshall Chevrolet, Inc., objector, appeals from the order of the Court of Common Pleas of Berks

[ 57 Pa. Commw. Page 526]

County which, without taking evidence, affirmed the action of the Zoning Hearing Board of the City of Reading permitting Masano Realty to raze a small existing garage and to pave and enclose the lot on which it sat for use as a security compound for storage of new automobiles. The board granted permission on the theory that, although the subject property is and has been zoned residential since 1957 when Reading first adopted zoning, Masano was entitled to undertake its proposal as continuation of commercial parking found by the board to be a legal nonconforming use.

Because the common pleas court took no evidence, we review the board's decision to determine whether it abused its discretion or committed errors of law. Muse v. Zoning Hearing Board of Ben Avon Heights Borough, 52 Pa. Commonwealth Ct. 287, 415 A.2d 1255 (1980). The objector contends that the board's findings and conclusions as to legal nonconforming use status are unsupported and thus that the board abused its discretion and erred in law by granting the permit. We agree.

The benefit of legal nonconforming use status is available only to that lawful use which existed on the land at the time when the prohibitory zoning (to which the use does not conform) took effect. Thus, in this case, the threshold question is to what use was the land put in 1957 when Reading adopted its first zoning ordinance. Only when that question has been resolved can we determine whether commercial use became a legally protected category.

On this threshold issue, the board here found only that:

10. Continuously from 1958 to date, the property has been used for the parking of ...


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