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MICHAEL IMMORDINO AND RITA M. IMMORDINO v. ZONING HEARING BOARD MORRISVILLE BOROUGH (03/01/82)

decided: March 1, 1982.

MICHAEL IMMORDINO AND RITA M. IMMORDINO, HIS WIFE, APPELLANTS
v.
ZONING HEARING BOARD OF MORRISVILLE BOROUGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Michael Immordino and Rita M. Immordino, his wife v. Zoning Hearing Board of Morrisville Borough, No. 78-10348-09-5.

COUNSEL

Ward F. Clark, Pratt, Clark, Gathright & Brett, for appellants.

No appearance for appellee.

Dennis W. Lanctot, Fedorko, Gilbert & Lanctot, for intervenor, Borough of Morrisville.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.

Author: Blatt

[ 65 Pa. Commw. Page 81]

This is an appeal from an order of the Court of Common Pleas of Bucks County which affirmed the denial by the Morrisville Borough Zoning Hearing Board (Board) of an application for a special exception or a variance.

In 1972 Michael and Rita Immordino (appellants) purchased a 7,500 square-foot piece of property on which a four-unit multi-family house was situated. The property is located in a R-3 residential area of Morrisville Borough (Borough) in which multi-family dwellings are a permitted use under a zoning ordinance enacted in 1968. In 1975 the appellants constructed a new apartment in the previously unfinished third floor of the house and converted a large first floor apartment into two efficiency apartments, thereby increasing the total number of apartments to six. They did not, however, seek the permission of the zoning authority to increase the number of apartments until three years later when, in 1978, they filed a petition for a special exception or a variance,*fn1 which the Borough Zoning Officer and, subsequently, the Board both denied. Upon appeal to the Court of Common Pleas, a Stipulation of Testimony, which established that the building had been in use as a four-unit multi-family

[ 65 Pa. Commw. Page 82]

    dwelling since 1925, was entered into the record. The court below affirmed the Board and this appeal followed.

In zoning cases, where, as here, the court below has received additional evidence, our scope of review is limited to a determination of whether or not it has committed an error of law or abused its discretion. Borough of Baldwin v. Bench, 11 Pa. Commonwealth Ct. 410, 315 A.2d 911 (1974).

The appellants, besides including a challenge to the validity of Section 802 of the Borough zoning ordinance, base their claim upon the premise that their multi-family dwelling is a valid nonconforming use as to which they enjoy a constitutionally protected vested right of natural expansion as the dictates of business and modernization require. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A.2d 506 (1969). And, while the continuance of a nonconforming use is constitutionally protected and may, indeed, even be enlarged to provide for natural expansion and the accommodation of increased trade, the right of expansion is subject to limitations imposed by the law itself or by applicable zoning regulations. Philadelphia v. Angelone, 3 Pa. Commonwealth Ct. 119, 280 A.2d 672 (1971). It is also well recognized that, while a municipality "cannot arbitrarily abrogate a landowner's vested right of natural expansion by prohibiting all such growth . . . [it] certainly can condition such expansion on certain prerequisites and standards necessary for the preservation of the health, safety and welfare of the community." Silver, 435 Pa. at 103, 255 A.2d at 508.

Even though zoning ordinances permit the continuance of nonconforming uses, it is the policy of the law to closely restrict such nonconforming uses and to strictly construe provisions in zoning ordinances ...


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