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DINZEL J. KARCH v. COMMONWEALTH PENNSYLVANIA (02/14/85)

decided: February 14, 1985.

DINZEL J. KARCH, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Commonwealth of Pennsylvania v. Dinzel J. Karch, No. 480-81 S.A.

COUNSEL

Richard C. Slama, Jr., with him, John P. Trevaskis, Jr., for appellant.

Robert F. Pappano, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr., and Colins, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Colins dissents. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Crumlish

[ 87 Pa. Commw. Page 549]

Dinzel Karch appeals a Delaware County Common Pleas Court order dismissing his post-verdict motions seeking to set aside his conviction for violating the Tinicum Township zoning ordinance.

[ 87 Pa. Commw. Page 550]

Karch applied to the Township for a certificate of occupancy to use his premises as an auto repair, body repair, and sales and maintenance shop. The Township's zoning officer denied this application for not conforming to the surrounding residential zoning. He appealed this denial to the Zoning Hearing Board, seeking relief either through a variance or a special exception to continue a prior nonconforming use. The Zoning Hearing Board sustained the zoning officer's decision, finding that the uses contemplated by Karch would not represent a continuation of a prior nonconforming use. The common pleas court affirmed the Zoning Hearing Board's decision; Karch did not appeal that ruling.

Undaunted by the string of adverse rulings, Karch commenced operating an auto repair shop. He was cited for this, and a District Justice found him guilty of violating the Township's zoning ordinance. Karch appealed to the Delaware County Common Pleas Court. The trial court, following a hearing, adopted as conclusive the Zoning Hearing Board's findings of fact on the nonconforming use issue, and found him guilty. Karch's post-verdict motions were dismissed. The present appeal ensued.

In this appeal, Karch attacks the trial court's holding that his use of the premises was not a continuation of a prior nonconforming use. Specifically, he contends that the court erred in concluding that the Zoning Hearing Board's findings on the nonconforming use issue were binding upon it. There is no merit in this argument.

Where a zoning issue has been litigated to a final conclusion under the appeal provisions of the Pennsylvania Municipalities Planning Code,*fn1 relitigation of

[ 87 Pa. Commw. Page 551]

    this issue in a subsequent enforcement action is precluded. Section 1001 of the Code*fn2 provides "The proceedings set forth in this article [Article X, governing appeals] shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its agencies or officers adopted or issued pursuant to this act." (Emphasis added.) In Visual Education, Inc. v. Springettsbury Township, 54 Pa. Commonwealth Ct. 529, 422 A.2d 235 (1980), this Court relied on Section 1001 in holding that a party's ...


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