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JOHN W. DZIEDZIC v. ZONING HEARING BOARD UPPER HANOVER TOWNSHIP (04/29/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 29, 1982.

JOHN W. DZIEDZIC, JR., APPELLANT
v.
ZONING HEARING BOARD OF UPPER HANOVER TOWNSHIP, APPELLEE

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of John W. Dziedzic, Jr. v. Zoning Hearing Board of Upper Hanover Township, No. 78-21535.

COUNSEL

Luke F. McLaughlin, III, with him J. William Ditter, III, for appellant.

Gregory S. Ghen, with him Gerald J. Mullaney, for appellee.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Mencer.

Author: Macphail

[ 66 Pa. Commw. Page 358]

John W. Dziedzic, Jr. (Appellant) has appealed from an order of the Court of Common Pleas of Montgomery County which affirmed the decision of the Upper Hanover Township Zoning Hearing Board

[ 66 Pa. Commw. Page 359]

(Board) ordering Appellant to cease and desist from conducting an auto body or automotive repair business upon his premises. We affirm.

The subject property of this appeal consists of approximately twenty acres of land situated along Gerryville Pike in Upper Hanover Township. There is no dispute that the property has been zoned, since 1955, as residential property. There is also no dispute that prior to the 1955 enactment of zoning in the Township this property had been used as an automobile junkyard for the salvage and sale of used automotive parts and that such a use has continued to the present.

At issue in the case, however, is whether Appellant may also operate an auto body repair and automotive repair business on this property as either a continuance or necessary extension of a prior nonconforming use. The Board, in issuing its cease and desist order, determined that these latter uses were not protected prior uses or necessary extensions of the prior use but rather were new nonconforming uses prohibited under the ordinance. The lower court, without taking further evidence, determined that the Board did not abuse its discretion or commit any error of law in this decision.

[ 66 Pa. Commw. Page 360]

We have reviewed the briefs and record in this case,*fn1 and agree with the lower court. Therefore, we shall affirm on the basis of the able opinion of the late Judge Moss, Dziedzic v. Zoning Hearing Board of Upper Page 360} Hanover Township, Pa. D. & C. 3rd (1980), with added reference to Abbot v. Commonwealth, 56 Pa. Commonwealth Ct. 482, 425 A.2d 856 (1981).

Order

And Now, this 29th day of April, 1982, the order of the Court of Common Pleas of Montgomery County, No. 78-21535, dated December 1, 1980, is hereby affirmed.

This decision was reached prior to the resignation of Judge Mencer.

Disposition

Affirmed.


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