Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Municipality of Penn Hills v. Zoning Hearing Board of the Municipality of Penn Hills, No. SA 274 -- 1980.
Gary Kalmeyer, Kalmeyer and Kalmeyer, for appellant.
Henry G. Beamer, with him August C. Damian, for appellee.
Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.
[ 60 Pa. Commw. Page 287]
Applicant Ferdinand Palumbo sought to erect a 20' by 30' building, on his residentially zoned property in the Municipality of Penn Hills, to be used in the landscaping business he conducted from that property; he applied to the Penn Hills Zoning Hearing Board for a variance to permit that construction as an expansion of a nonconforming use.
At the hearings on that application, the evidence focused on the question of whether applicant's use had been conducted on the property before enactment of Penn Hills' August 19, 1963 zoning ordinance; the board concluded that the use had existed although for only a few weeks before that date, and it granted the variance, over the objection of one member who called attention to an earlier 1940 Penn Hills zoning ordinance which, like the 1963 ordinance, placed the subject property in a residential zone.
[ 60 Pa. Commw. Page 288]
On appeal to the Court of Common Pleas of Allegheny County, the municipality requested a remand to the zoning hearing board for the purpose of considering the import of the 1940 zoning. The court declined to remand, but directed that the parties address the earlier ordinance in briefs.
Without taking any new evidence, the court reversed the zoning hearing board on the ground that, because the subject property was zoned residential under the 1940 ordinance, applicant's commercial use, dating only from 1963, was not lawfully in existence before the 1963 ordinance. This appeal followed.
Two salient points of law are well established: (1) "The burden of proving the extent or existence of a nonconforming use rests on the property owner who would claim the benefit of the rights accorded property with that status." Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commonwealth Ct. 397, 402, 412 A.2d 169, 171-2 (1980); and (2) "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." Marshall Chevrolet, Inc. v. Zoning Hearing Board of the City of Reading, 57 Pa. Commonwealth Ct. 525, 526, 426 A.2d 1236, 1237 (1981). Thus applicant's burden in this case was to demonstrate that his commercial use was in existence and was lawful before the enactment of the 1963 ordinance.
Applicant does not contest these points, nor the fact that the 1940 ordinance limited the subject property to residential uses. However, applicant submits that the lower court's reversal on that ground was error because it constituted a new theory not addressed by the board. We ...