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HAROLD J. RAMSEY v. ZONING HEARING BOARD BOROUGH DORMONT ET AL. BOROUGH DORMONT (10/13/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 13, 1983.

HAROLD J. RAMSEY
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 the case of Harold J. Ramsey v. Zoning Hearing Board of the Borough of Dormont v. The Borough of Dormont, No. SA 1364 of 1981.

COUNSEL

Phillip D. Paull, for appellant.

William G. Boyle, with him Robert P. Struble, Meyer, Unkovic & Scott, for appellee.

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

Author: Crumlish

[ 77 Pa. Commw. Page 457]

The Borough of Dormont appeals an Allegheny County Common Pleas Court order reversing the Dormont Zoning Hearing Board's (Board) denial of a use conversion permit. We affirm.

Harold Ramsey owns a single-family house in a commercial district which is a valid non-conforming use. Ramsey sought to convert the property to a conforming commercial use, but the Board refused his application, holding that Section 504.2 of the zoning ordinance (ordinance) prohibited the conversion.

Section 504.2 provides that:

No existing single . . . family dwelling situate in any residential district . . . established under prior zoning ordinances, which are now included in any commercial . . . District established by this ordinance, shall be converted to any commercial use.

Ramsey contends that, because his building was unoccupied for eighteen months, the non-conforming use terminated and the property reverted to a commercial

[ 77 Pa. Commw. Page 458]

    use by operation of Section 501.3 of the ordinance, which provides that:

If a non-conforming use of land or buildings ceases operations for a continuous period of more than six (6) months, then this shall be deemed to be an intent to abandon such use and any subsequent use of land shall conform to the regulations of this ordinance.

Our scope of review where the lower court took no additional evidence is limited to determining whether the Board abused its discretion, committed a legal error, or made findings of fact which were not supported by substantial evidence. Grosek and Associates v. Zoning Hearing Board of Montrose Borough, 69 Pa. Commonwealth Ct. 38, 450 A.2d 263 (1982).

Ramsey misconstrues Section 501.3 in these circumstances. That section provides for the elimination of non-conforming uses. It furnishes a means by which the Borough can establish an owner's intent to abandon. It is not a rule which requires a property to remain unoccupied for six months before a non-conforming use may be abandoned.

However, Ramsey may lawfully convert to a conforming commercial use. Section 504.2 applies only to dwellings. Section 102.2 of the ordinance as applied indicates that Ramsey's building is no longer a "dwelling." That section defines a single-family dwelling as:

A building designed for and occupied exclusively as a residence for one (1) family. (Emphasis added.)

Since Section 504.2 applies only to occupied houses and since Ramsey's house was unoccupied, it is no longer a "dwelling." Ramsey must be granted a use conversion permit.

We have interpreted the relevant sections of the ordinance in this manner in order to comply with 1

[ 77 Pa. Commw. Page 459]

Pa. C.S. § 1921(c)(6)*fn1 and 1 Pa. C.S. § 1922(3).*fn2 Though we cannot rule directly on the constitutionality of the ordinance,*fn3 we should,

     when a statute*fn4 is reasonably susceptible of two constructions, by one of which the statute would be unconstitutional and by the other it would be valid, . . . adopt the interpretation which will uphold it. (Citations omitted.)

Trumbaur v. Zoning Hearing Board, 73 Pa. D. & C.2d 20 (1975).

Our interpretation upholds the presumption of constitutionality of the Borough of Dormont zoning ordinance.

Affirmed.

[ 77 Pa. Commw. Page 460]

Order

The Allegheny County Common Pleas Court order, No. SA 1364 of 1981, dated March 11, 1982, is hereby affirmed.

Disposition

Affirmed.


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