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JAMES M. JONES AND JOSEPHINE B. JONES v. TOWNSHIP NORTH HUNTINGDON ZONING HEARING BOARD ET AL. (11/23/83)

decided: November 23, 1983.

JAMES M. JONES AND JOSEPHINE B. JONES, HIS WIFE, APPELLANTS
v.
THE TOWNSHIP OF NORTH HUNTINGDON ZONING HEARING BOARD ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of James M. Jones and Josephine B. Jones, his wife v. The Township of North Huntingdon Zoning Hearing Board, No. 275 of 1979.

COUNSEL

James B. Lieber, with him Thomas C. Jones, for appellants.

Victor R. Delle Donne, with him Joel P. Aaronson, Baskin and Sears, P.C., for appellee.

Thomas P. Cole, III, for intervenor, Township of North Huntingdon.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 78 Pa. Commw. Page 506]

The appellants, James M. and Josephine B. Jones, landowners, have appealed from an order of the Court of Common Pleas of Westmoreland County upholding the decision of the Zoning Hearing Board of North Huntingdon Township that they had not established their entitlement to devote their property to a use not conforming to zoning regulations.

The history of this case is somewhat complex. In June, 1978, the appellants were served with two citations for parking commercial vehicles on their property which is located in a residential zoning district. A district justice found the appellants guilty and on appeal to the court of common pleas the appellants alleged that they had used their property for parking commercial vehicles prior to the enactment of the

[ 78 Pa. Commw. Page 507]

    township zoning ordinance in 1964 and were entitled to registration of their use as a lawful nonconforming use. It is not clear whether the hearing judge decided the matter of the summary offenses; he may have continued it. In any event, because the matter involved a claim of entitlement to a nonconforming use, the court referred the appellants to the North Huntingdon Township Zoning Hearing Board as the appropriate tribunal for deciding their claim to a lawful nonconforming use.

The Zoning Hearing Board initially refused the appellants' claim because they had not registered the use within thirty days of receiving oral notice of noncompliance as the township's zoning ordinance required. The appellants appealed to the court of common pleas which remanded the case to the Zoning Hearing Board solely for a determination on the merits of whether the appellants were entitled to a nonconforming use to park commercial vehicles on their property. The Zoning Hearing Board after conducting a further hearing again refused the appellants' claim, this time basing its decision on the appellants' failure to prove the nature, extent and duration of their alleged nonconforming use. On appeal, without taking additional evidence, the court of common pleas held that the Zoning Hearing Board had decided the case correctly because the appellants' evidence demonstrated only a sporadic use of their property for the parking of commercial vehicles before the enactment of the zoning ordinance.

Where the lower court takes no additional testimony, as is the case here, the scope of review of this Court is to determine whether the Zoning Hearing Board abused its discretion or committed an error of law in reaching its decision. Reinert v. ...


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