Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Edward Sullivan v. Zoning Board of Adjustment, No. 3699 March Term, 1981.
Robert S. Esposito, with him, Austin J. McGreal, for appellant.
Mary Rose Cunningham, Chief Assistant City Solicitor, with her, Mark A. Aronchick, City Solicitor, for appellee.
Irvin Stander, for intervening appellee.
Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.
[ 83 Pa. Commw. Page 230]
Edward Sullivan has appealed from an order of the Court of Common Pleas of Philadelphia County affirming a decision of the City of Philadelphia Zoning Board of Adjustment upholding the denial by the Department of Licenses and Inspections (L & I) of his application for a zoning permit or, in the alternative, a variance,*fn1 which would allow him to construct a one story 10 1/2 by 13 feet structure to house a trash baler located at the site of his nonconforming junkyard.
[ 83 Pa. Commw. Page 231]
The appellant's property was purchased by his grandfather in 1912 and was used by the latter as a junkyard from 1914 until his death in 1943. The open air storage of junk and its processing became a non-conforming use of the property under the terms of the city's zoning ordinance after its enactment in August, 1933. In 1943, ownership of the property passed to the appellant's aunt, Rose Sullivan, who continued to use it as a junkyard. In 1956, L & I granted Rose Sullivan a zoning permit for the erection of a six foot high masonry wall along at least one of the property's street fronts. In 1963, Rose Sullivan ceased operating the junkyard and rented the property to her brother Thomas. The use of the property made by Thomas from 1963 to 1977 is a matter of dispute by the parties. The appellant, Edward Sullivan, purchased the property from Rose Sullivan in 1977 and indisputably has used the property as a junkyard since then.
The zoning district in which the property is located is R-10A where the storage or baling of junk or the dismantling or wrecking of used motor vehicles is not a permitted use.*fn2 The lot seems to be about 13,660 square feet in area. There is one structure on it, part of which was built in 1914 and the remainder in 1929. The proposed new one story structure would be located 30 feet from the existing building.
L & I refused the zoning permit because "the erection of a one story baler on the same lot with an existing structure-junk shop and the storage of junk on an open lot . . . creates a condition of two structures on
[ 83 Pa. Commw. Page 232]
one lot whereas neither of the structures have their own lot lines, rear yard, side yards and open area. . . . This condition is not permitted in the district"; and also on the ground that the use of the property as a junkyard had been terminated as a matter of law pursuant to Section 14-104(13) of the Philadelphia Zoning Code. That provision, as we will see later, provides that certain nonconforming uses conducted in the open air (including as the appellant concedes, his operation) shall be discontinued at the expiration of five years from the effective date of the amendment to the zoning ordinance which causes the use to be nonconforming. In its decision, L & I referred to a letter dated January 17, 1966 from the city's chief of the zoning section to Rose Sullivan which stated that "[t]his is to notify you that your non-conforming use of the subject property is registered with the Department of Licenses and Inspections in accordance with Title 14-104-Par. 13 and such use must be discontinued by May 1, 1966." Both Rose and Edward Sullivan claim never to have received this letter and so did not heed it.
At the zoning board hearing of Edward Sullivan's appeal, three neighbors intervened. Four hearings were held between June, 1979 and January, 1981. The zoning board's decision affirming L & I's action was based on the following conclusions:
7. The Board concludes that there has been a discontinuance of the junkyard use of the premises for at least three consecutive years during the period from 1965 to 1977, and that the junkyard use of the premises must therefore be considered as abandoned under the provision of Section 14-104(5) of the Philadelphia Zoning Code.
8. The Board also concludes that Applicant's request for an extension of a non-conforming
[ 83 Pa. Commw. Page 233]
use under the provisions of Section 14-104(7) of the Philadelphia Zoning Code does not meet the requirements of said Code provisions, because the extension is proposed in a separate structure; contrary to the provisions of Section 14-104(7) and Section 14.211.1 (R-10A Residential) of the Philadelphia Zoning Code.
9. The Board concludes that the subject property located in a R-10A Residential district was being used for the open air storage of junk, an industrial use; that said use was conducted or maintained on . . . less than 25% of the lot area . . .; said junk yard use is therefore directly subject to the Discontinuance provisions of Section 14-104(13) of the Philadelphia Zoning Code; that the City of Philadelphia notified the owner of the premises on January 17, 1966 that said junk yard must be discontinued by May 1, 1966; and that the said junk yard lost its nonconforming status as of May 1, 1966.
The court of common pleas, which did not receive additional evidence, affirmed the decision of the zoning board.
The appellant has appealed from the court's order and makes the following arguments: (1) that he had not abandoned the nonconforming use; (2) that Section 14-104(13) of the Philadelphia Zoning Code is unconstitutional; (3) that, even if Section 14-104(13) is not unconstitutional, it is unenforceable against the appellant because of laches; (4) and that the zoning permit should have been granted because the proposed structure housing the baler was an addition necessary for the natural expansion and accommodation of the increased trade of his junkyard enterprise.
No additional evidence having been received by the trial court, our duty is to determine whether the
[ 83 Pa. Commw. Page 234]
zoning board committed an abuse of discretion or made an error of law. Rieder Appeal, 410 Pa. 420, 188 A.2d 756 (1963).
A. Section 14-104(5)(b) of the Philadelphia Zoning Code and Abandonment of the Nonconforming Use
Section 14-104(5) of the Philadelphia Zoning Code is entitled Discontinued Use. Subsection (b) provides that:
A non-conforming use when discontinued for a period of more than three consecutive years shall be considered abandoned and may not be resumed, and any subsequent use of the land or structure must comply with the use requirements of the district in which it is located, subject to the provisions of paragraph ...