Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Zoning Return -- James and Vilma Lennox, Margaret C. Albert and Christine King v. Zoning Board of Adjustment of the City of Pittsburgh, No. S.A. 424 of 1981.
Paul H. Titus, Titus, Marcus & Shapira, of counsel: Judith L. Maute, for appellants.
D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellee.
President Judge Crumlish and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Williams, Jr.
[ 67 Pa. Commw. Page 419]
James and Vilma Lennox (Petitioners), owners of the property in question, along with Margaret C. Albert and Christine King,*fn1 adjoining property owners, appeal here from a denial of an occupancy permit by the Court of Common Pleas of Allegheny County. The Court of Common Pleas affirmed the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Zoning Board), denying Petitioners' application to occupy their property as a three family dwelling in a two family district.
The property has been zoned as an R-2 two family district since the enactment of the Zoning Ordinance of 1958 and under the prior Ordinance of 1923 the property was classified as a B residence district which permitted only one or two family occupancies.
From the record it appears that the building involved was originally erected in 1905 as a two story single family dwelling with three detached garages. Sometime later,*fn2 the house was converted into a duplex with two sun porches, two gas and electric meters and two furnaces. It is not clear when the conversion to a three unit dwelling took place but Petitioners offered some evidence that since 1936, the property was used as a three unit dwelling and that it was used for that purpose when they purchased it in 1954. At that time and at the present the building is a two and one-half story residential dwelling with the three detached garages, two sun porches, two gas and electric meters and two furnaces. At the time they purchased the
[ 67 Pa. Commw. Page 420]
building, Petitioners did not check the zoning ordinance*fn3 or attempt to secure a multifamily occupancy permit.
In January of 1981, Petitioners applied for an occupancy permit for a three family unit dwelling, contending that the city was estopped, under a theory of vested rights, from enforcing the provisions of the zoning ordinance due to the municipal acquiescence to the nonconforming use, or, in the alternative, that they were entitled to an occupancy permit based on a prior legal nonconforming use.
A hearing was held before the Zoning Board and on March 26, 1981, Petitioners' application was denied, the Board finding that Petitioners failed to demonstrate the existence of a legal nonconforming use which predated the enactment of the 1923 Zoning Ordinance.*fn4
Petitioners then appealed to the trial court which, without taking additional testimony, affirmed the decision of the Zoning Board. Neither the Zoning Board nor the trial court dealt with the ...