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WILLIAM L. SHELLEY ET AL. v. ZONING HEARING BOARD CARLISLE (01/13/83)

decided: January 13, 1983.

WILLIAM L. SHELLEY ET AL., APPELLANTS
v.
THE ZONING HEARING BOARD OF CARLISLE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of William L. Shelley, W. L. Hall, Louis F. Del Duca, Charles W. Rogers and Georgette Rogers v. The Zoning Hearing Board of Carlisle, No. 1696-1980, and in the case of Constance B. Ruby, t/a Walnut Bottom Tavern v. The Zoning Hearing Board of Carlisle, No. 1783-1980.

COUNSEL

Frances H. Del Duca, Faller & Del Duca, for appellants.

Dale F. Shughart, Jr., Fowler, Addams & Shughart, for appellee, Constance B. Ruby, t/a Walnut Bottom Tavern.

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

Author: Craig

[ 71 Pa. Commw. Page 154]

In this zoning appeal, a group of protesting neighbors appeals the order of the Court of Common Pleas of Cumberland County which, in substantially affirming

[ 71 Pa. Commw. Page 155]

    the decision of the Carlisle Zoning Hearing Board, held that owner Constance B. Ruby could rebuild the Walnut Bottom Tavern which had been partially destroyed by fire.

Under the Carlisle Zoning Ordinance, the tavern was a nonconforming use in an R-2 Residential District. After the fire, the township refused the owner's request for a building permit to rebuild the tavern, citing Section 901.1 of the Zoning Ordinance,*fn1 which provides:

In the event that a non-conforming use in any district is destroyed or partially destroyed by fire, explosion or other cause, or otherwise damaged to the extent of fifty (50%) percent or more of either its assessed valuation (as determined from the Assessment Rolls effective at the date of damage or destruction) or its bulk of all buildings, structures, and other improvements on the lot, such non-conforming uses shall terminate and the lot shall thereafter be used only for conforming uses.

After the township refused to issue the permit, the owner appealed to the board. The board found that the fire damage of $51,133 exceeded 50% of the tavern's assessed value*fn2 of $5,320, but, recognizing that application of the assessed value measurement often would lead to "arbitrary and unreasonable" results,*fn3 it simply read "assessed value," as used in

[ 71 Pa. Commw. Page 156]

    the ordinance as if it meant "fair market value." After finding that the fair market value of the tavern before the fire was $140,000, the board concluded, and the common pleas court agreed, that ...


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