Appeal from the Order of the Court of Common Pleas of Centre County in case of Eugene F. Rudolph v. Zoning Hearing Board of College Township, No. 1980-2805.
Benjamin Novak, for appellant.
I. Jay Cooper, with him Ronald M. Katzman, Goldberg, Evans & Katzman, P.C., for appellee.
Judges Williams, Jr., Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
The Township of College (Township)*fn1 and the Zoning Hearing Board of College Township (Board) appeal here from an order of the Court of Common Pleas of Centre County reversing the Board's dismissal of an appeal brought by Eugene F. Rudolph
from a decision of a Township zoning officer who cited Mr. Rudolph for renting two apartments in a building which, under the applicable Township zoning ordinance, may only contain one dwelling unit. We reverse.
On August 19, 1977, Mr. Rudolph purchased two contiguous lots in an area of the Township zoned as a C-1 General Commercial District. A two-story building, with commercial space on the first floor, and two apartments on the second floor, was located on the first of these lots, and a stable, with no provisions for human occupation, was located on the second. At the time of this purchase, the applicable Township ordinance, enacted in 1965, provided, inter alia, that buildings located in C-1 General Commercial Districts were permitted "one single family residence per lot on the top floor over a commercial establishment."*fn2 A new Township zoning ordinance, enacted a few weeks after Mr. Rudolph's purchase, similarly provided that "all commercial buildings permitted in . . . C-1 . . . districts may include one dwelling unit."*fn3 Shortly after the effective date of this new ordinance Mr. Rudolph applied for a variance from this restriction and, following a hearing, the Board, in a decision dated February 3, 1978, denied this request on the ground that Mr. Rudolph failed to establish a hardship unique to the property in question. See Section 912(1) of the Pennsylvania Municipalities Planning Code (MPC).*fn4 In its decision the Board did not, as the Township alleges here, address the issue of whether the building in question was a valid nonconforming use, and accordingly made no finding as to whether the building in question had two dwelling units in it prior to the
Township's enactment of a zoning ordinance.*fn5 Mr. Rudolph took no appeal from this decision and, in disregard of the Board's decision, rented both of the apartments in the building in question. Over two years later, after a routine inspection of the premises, a Township zoning officer discovered for the first time that Mr. Rudolph was renting both of the apartments in his building, and sent a letter to Mr. Rudolph directing him to correct "the violation." Mr. Rudolph appealed this determination to the Board alleging that the premises in question was a valid nonconforming use and "that the Zoning Hearing Board Opinion of February 3, 1978, is invalid." After conducting a hearing, the Board, as noted above, dismissed the appeal. In its decision, the Board, apparently believing that it had addressed the nonconforming use issue in its February 3, 1978, decision, discussed the doctrine of res judicata, and concluded that it could only consider "new" issues not raised by Mr. Rudolph in the prior proceeding before the Board. The Board then noted that the only "new" issue raised by Mr. Rudolph was the question of whether two dwelling units were permitted under the Township's 1965 zoning ordinance in buildings located in C-1 General Commercial Districts where the owner of the property owned two lots, with one of those lots having no dwelling units located thereon, and ruled against Mr. Rudolph on the issue.*fn6 Upon a further appeal, however, the
court of common pleas, without taking any additional evidence, reversed. In its decision the court concluded (1) that the Board had improperly invoked the doctrine of res judicata, and (2) that the Township's 1965 zoning ordinance permitted more than one single family residence per lot in C-1 General Commercial Districts if the ...