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ALTPA v. NORTH HUNTINGDON TOWNSHIP ZONING HEARING BOARD (06/04/82)

decided: June 4, 1982.

ALTPA, INC., ERNEST E. LINDH AND VIRGINIA LINDH, APPELLANTS
v.
NORTH HUNTINGDON TOWNSHIP ZONING HEARING BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Altpa, Inc., Ernest E. Lindh and Virginia Lindh v. North Huntingdon Township Zoning Hearing Board, No. 8547 of 1979.

COUNSEL

William G. Sherr, Stark and Sherr, for appellants.

Victor R. Delle Donne, Baskin and Sears, with him Thomas P. Cole, II, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 67 Pa. Commw. Page 61]

This is a zoning appeal from the Court of Common Pleas of Westmoreland County, in which the court and the Zoning Hearing Board of North Huntingdon Township have both upheld the township zoning officer's revocation of an occupancy certificate issued to Altpa.

The building leased by Altpa from the Lindhs is located in the R-2 residential zone under the township's zoning ordinance. Before Altpa leased the building, it was used as a bar, a nonconforming use.

Altpa's occupancy certificate application stated that Altpa would use the building for "retail sales," specifically discount and distressed merchandise; retail sales is not a use permitted by right in the R-2 zone. The zoning officer issued an occupancy certificate permitting Altpa to use the building for "retail sales." Altpa then began to use the building as an adult bookstore and to install motion picture booths for displaying films.

By letter sent 18 days after the certificate issuance, the zoning officer revoked that occupancy certificate on the ground that Altpa had misrepresented the type of business it would conduct and because he determined that he should not have issued a certificate for any business other than a bar -- that is, no change to a different nonconforming use was allowable.

The latter point is decisive in prompting us to affirm the decision here. Because the record reveals no legal or factual basis for allowing a change from the pre-existing legal nonconforming use as a restaurant (bar) to retail sales (bookstore),*fn1 the revocation of

[ 67 Pa. Commw. Page 62]

    the occupancy certificate was proper and properly upheld.

There is no constitutionally protected right to change from one nonconforming use to another. Allowance of a change of nonconforming use is based upon the ordinance and is limited according to the ordinance's terms. William Chersky Joint Enterprises v. Board of Adjustment, 426 Pa. 33, 231 A.2d 757 (1967). Because Altpa is unable to point to any provision in this ordinance allowing one nonconforming use to ...


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