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WALTER P. KNAKE v. ZONING HEARING BOARD BOROUGH DORMONT ET AL. BOROUGH DORMONT (05/11/83)

decided: May 11, 1983.

WALTER P. KNAKE
v.
ZONING HEARING BOARD OF THE BOROUGH OF DORMONT ET AL. THE BOROUGH OF DORMONT, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Walter P. Knake v. Zoning Hearing Board of the Borough of Dormont v. Borough of Dormont, No. SA 1061 of 1981.

COUNSEL

Phillip D. Paull, for appellant.

Robert M. Entwisle, with him Robert M. Entwisle, III, Miller & Entwisle, for appellee.

President Judge Crumlish, Jr. and Judges MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 74 Pa. Commw. Page 266]

The Borough of Dormont (Borough) has appealed from an order of the Court of Common Pleas of Allegheny County which reversed a decision of the Borough's Zoning Hearing Board (Board) and ordered that a five-unit occupancy permit be issued to Walter P. Knake (Appellee) for a building he owns in the Borough. We affirm.

The record and facts as found by the court of common pleas*fn1 establish that Appellee purchased the subject three-story building in 1937. At the time of purchase the structure was divided into four units and in 1948 a fifth unit was added. The building was thereafter occupied as a five-family dwelling until 1981 when Appellee was cited for a zoning violation. The subject property has at all relevant times been

[ 74 Pa. Commw. Page 267]

    located in an R-2 zoning district which limits residences to one or two-family dwellings.

The sole issue raised in this appeal is whether Appellee is entitled to continue to use his property in violation of the Borough's zoning ordinance under a theory of variance by estoppel. The Board found that Appellee was entitled to continue to use four of the five units due to the Borough's acquiescence in multi-family use over a long period of time. On appeal and after a further hearing before a court-appointed referee, the court of common pleas determined that Appellee was entitled to the requested five-unit occupancy permit, again due in large part to municipal inaction with regard to the known violation. The instant appeal followed.

The case law regarding the theory of variance by estoppel, or vested rights as it is frequently termed, has not produced a clearly defined test for determining when it has become inequitable to enforce a particular zoning restriction against a landowner. In the case of Sheedy v. Zoning Board of Adjustment, 409 Pa. 655, 187 A.2d 907 (1963) our Supreme Court found that at least five factors converged to require the grant of a variance for a five-unit dwelling located in a single family zoning district. The five factors were that: 1) the present owners purchased the property believing in good faith that the multi-family use was lawful; 2) enormous expenditures would be required to reconvert the structure to a conforming use; 3) the municipality failed for twenty-three years to enforce the zoning restrictions; 4) the municipality was aware of the existence of the illegal use and 5) the multi-family use would present no threat to the public health, safety or welfare.

In a slightly different vein, the Supreme Court in Heidorn Appeal, 412 Pa. 570, 195 ...


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