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ANTHONY J. MOSES AND ROBERT J. MOSES v. ZONING HEARING BOARD BOROUGH DORMONT AND BOROUGH DORMONT (02/08/85)

decided: February 8, 1985.

ANTHONY J. MOSES AND ROBERT J. MOSES, APPELLANTS
v.
ZONING HEARING BOARD OF THE BOROUGH OF DORMONT AND BOROUGH OF DORMONT, APPELLEES



Appeals from the Order of the Court of Common Pleas of Allegheny County in case of Anthony J. Moses and Robert J. Moses v. Zoning Hearing Board of the Borough of Dormont, Nos. SA 779 of 1982 and SA 275 of 1983.

COUNSEL

Alvin E. Dillman, Dillman & Schuchert, for appellants.

Phillip D. Paull, for appellees.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Macphail

[ 87 Pa. Commw. Page 445]

Anthony J. Moses and Robert J. Moses (Appellants) appeal from an order of the Court of Common Pleas of Allegheny County which affirmed a decision of the Zoning Hearing Board (Board) of the Borough of Dormont (Borough) denying Appellants' request for a variance, special exception or non-conforming use status.*fn1 We affirm.

The building in question was originally a single family dwelling which was converted*fn2 to a four family dwelling. The building is located in an R-4 Residential District under the provisions of Zoning Ordinance No. 1124 of 1968, Borough of Dormont (December 30, 1968) (Ordinance No. 1124). Permitted structures in an R-4 district include townhouses, garden apartments and apartment houses. After inquiring as to how the property in which the building

[ 87 Pa. Commw. Page 446]

    was located was zoned, Appellants purchased the four unit building. At the time they purchased the building, however, Appellants did not check the zoning ordinance or attempt to secure a multi-family occupancy permit.

Eleven years later, after Appellants spent time and money refurbishing the four units, the Borough notified Appellants that the building was an illegal conversion in violation of Ordinance No. 1124. On June 28, 1982, Appellants filed a request for a variance so that the building could be used as a four family unit dwelling or, as an alternative, requested a special exception occupancy permit based on a prior non-conforming use.

A public hearing was held and on October 21, 1982, Appellants' requests were denied.*fn3 The Board found that Appellants failed to demonstrate their entitlement to either a variance or a special exception. The Board also found that there was no prior non-conforming use which would allow the building to be used as a four family dwelling unit.

Appellants then appealed to the trial court which, without taking additional evidence, held that Appellants had failed to demonstrate the existence of a non-conforming use or the right to a special exception. As to the requested variance, the court remanded the matter to the Board on the narrow issue of unnecessary hardship. The Board was ordered to determine whether the building had value as a single family residence and to permit ...


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