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NATHAN S. NASSIF ET AL. v. BOARD ADJUSTMENT CITY PITTSBURGH. CITY PITTSBURGH (05/05/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 5, 1983.

NATHAN S. NASSIF ET AL.
v.
BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. CITY OF PITTSBURGH, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Nathan S. Nassif and Joseph Nassif and Kountz & rider, Inc. v. Board of Adjustment of the City of Pittsburgh, No. SA 15 of 1978.

COUNSEL

D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellant.

Frank J. Lucchino, Grogan, Graffam, McGinley, Solomon & Lucchino, for appellee.

President Judge Crumlish, Jr. and Judges Williams, jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., dissents.

Author: Crumlish

[ 74 Pa. Commw. Page 164]

The City of Pittsburgh appeals from an Allegheny County Common Pleas Court order directing the Pittsburgh Board of Adjustment (Board) to issue an occupancy permit. We affirm.*fn1

[ 74 Pa. Commw. Page 165]

The factual posture, detailed in Nassif v. Board of Adjustment of the City of Pittsburgh, 64 Pa. Commonwealth Ct. 15, 438 A.2d 1039 (1982), demonstrates that Kountz & Rider, Inc. and Nathan S. and S. Joseph Nassif (Appellees) applied for an occupancy permit for commercial parking by reason of a prior nonconforming use. The common pleas court, after taking additional evidence and deciding the matter de novo, directed the Board to issue the permit. Our review is limited to determining whether that court committed a legal error or abused its discretion. Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commonwealth Ct. 397, 399-401, 412 A.2d 169, 170 (1980).

A "nonconforming use" is a "use . . . which does not comply with the applicable use provisions in a zoning ordinance . . . where such sue was lawfully in existence prior to the enactment of such ordinance. . . ." Section 107 (13.1) of the Pennsylvania Municipalities Planning Code.*fn2 "The burden of proving the existence of a nonconforming use rests on the property owner who would claim the benefit of the rights accorded property with that status." Overstreet at 402, 412 A.2d at 171-72. The common pleas court found (and, as directed by our Supreme Court, we must accept these findings as supported by the record) that the property was used for commercial parking prior to the

[ 74 Pa. Commw. Page 166]

    enactment of Pittsburgh's original zoning ordinance in 1923 and that such use continued. We must also accept the common pleas court's finding that the nonconforming use was not abandoned. The appellees, having thus established the existence of a prior nonconforming use, are entitled to the requested occupancy permit.

Affirmed.

Order

The Allegheny County Common Pleas Court order, No. SA 15 of 1978, dated March 11, 1981, is hereby affirmed.

Judge Williams, Jr., dissents.

Disposition

Appeal denied and order affirmed.


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