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decided: May 14, 1984.


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of The Highland Park Community Club of Pittsburgh, David Goldhammer, Blair Crawford, Harriet Crawford, Bela Kovach and Jeanne Shaffer v. The Zoning Board of Adjustment of the City of Pittsburgh, No. SA 31 of 1983.


R. Dell Ziegler, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellants.

No appearance for appellee.

Edward C. Leckey, for intervenor, Jack Holzapfel.

Judges MacPhail, Barry and Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 82 Pa. Commw. Page 381]

The Highland Park Community Club of Pittsburgh and several named members of the club (Appellants) appeal from a decision of the Court of Common Pleas of Allegheny County. The Court affirmed the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board), finding that Jack Holzapfel (Owner) had a vested right in the continued use of his property for six family occupancy in an area zoned R-2, two family residential.

[ 82 Pa. Commw. Page 382]

The court of common pleas took no additional evidence; therefore we must determine whether the Board committed an error of law or abused its discretion. Hipwell Manufacturing Co. v. Zoning Board of Adjustment, 70 Pa. Commonwealth Ct. 83, 452 A.2d 605 (1982).

That part of the Board's decision labeled "Findings of Fact" is a summary of much of the testimony and the documents admitted into evidence. We must presume that the Board found credible the information it chose to so record.

The Board found that the property in question is in an area which was zoned "B" from 1923-1958,*fn1 and R-2 from 1958 to the present, one or two family occupancy. The Owner purchased the property in 1971, at which time the building contained six units. In January, 1976, the Owner applied for an occupancy permit following an inspection by the Bureau of Building Inspection (Bureau). The permit was granted for zoning only. In June, 1976, the Bureau advised the Owner that certain work was needed before the occupancy would be approved.*fn2 The Owner promptly secured a permit for enclosure of the furnace. In February, 1977, the Bureau notified the Owner that one unit must be removed from the basement to bring the total number of units in the building to

[ 82 Pa. Commw. Page 383]

    six. The Owner replied in October, 1977, agreeing to remove the seventh unit.*fn3

In 1978, the Owner hired a contractor for the necessary renovation of the structure. The Certificate of Occupancy for six units was approved in October, 1979.

The Owner argued before the Board that the instant appeal was not timely filed, having been brought in May, 1982. The Board refused to dismiss the appeal, and we find that this issue has not been preserved.*fn4

A municipal permit issued illegally or in violation of the law or under a mistake of fact confers no vested right or privilege upon the person to whom it is issued, regardless of any expenditures which may have been made pursuant thereto, unless such person has acquired a vested right to continue the use for which the permit was issued under existing law. The five factors to be considered in determining whether a property owner has a vested right to continue a use of his property even though a permit was issued because of a mistake are:

1) his due diligence in attempting to comply with the law;

2) his good faith throughout the proceedings;

3) the expenditure by him of substantial unrecoverable funds;

[ 82 Pa. Commw. Page 3844]

) the expiration without appeal of the period during which an appeal could have been taken from the issuance of the permit;

5) the insufficiency of the evidence to prove that individual property rights or the public health, safety or welfare would be adversely affected by the use of the permit.

Department of Environmental Resources v. Flynn, 21 Pa. Commonwealth Ct. 264, 344 A.2d 720 (1975).*fn5 The court of common pleas reviewed these factors, as have we. Contrary to the conclusion reached by the court of common pleas, we hold that there is not sufficient substantial evidence to warrant a positive finding on the first three of these factors, and that the Board erred as a matter of law.*fn6

There was no evidence that the Owner made any effort to check the zoning of the property or to secure a multi-family occupancy permit prior to or at the time of his purchase of the property. See Lennox v. Zoning Board of Adjustment of Pittsburgh, 67 Pa. Commonwealth Ct. 417, 447 A.2d 1049 (1982). Further, there is no evidence that the Owner took any action to secure an occupancy permit until a representative of the Bureau inspected the premises and advised the Owner to obtain a permit. Also, there was a lapse of three and one-half years from the initial application until the actual issuance of the Certificate of Occupancy.*fn7 This included a lapse of at least eighteen

[ 82 Pa. Commw. Page 385]

    months between the Bureau's letter regarding the seventh unit and the Owner's eventual action to remove it.

We recognize that the Board did not find that the Owner made any misrepresentations to the Bureau after he finally took steps to secure an occupancy permit. In and of itself, that fact is simply insufficient to demonstrate good faith and due diligence; rather, we think the Owner's failure to act unless prodded and then to incur substantial delays in taking definitive action, demonstrates lack of good faith and lack of due diligence.*fn8 The Owner has not met his burden of proof. See Flynn ; R. S. Ryan, Pennsylvania Zoning Law and Practice, ยง 8.32 (supp. 1982).

Additionally, while the Board found that the Owner spent $8,000 to $10,000 in the renovation of the structure, there was no evidence that this expenditure was unrecoverable funds and the Board erred in so finding.

The Owner did not establish a vested right in the continued use of the property as a six unit dwelling. Accordingly, the order of the court of common pleas is reversed.


The Order of the Court of Common Pleas of Allegheny County dated April 22, 1983, SA 31 of 1983, is hereby reversed and the Certificate of Occupancy granting six dwelling units to Jack Holzapfel at 5814 Wellesley Ave., No. 36133 dated October 10, 1979, is hereby revoked.



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