Appeal from the Order of the Court of Common Pleas of Delaware County in case of Larry J. Rendin and Helen C. Rendin, h/w v. Zoning Hearing Board of the Borough of Media, and Borough of Media, No. 83-13041.
Gail Whitaker, with her, Edward S. Lawhorne, Lawhorne, Muller & Del Sordo, for appellant.
Stephen J. Polaha, with him, Murray S. Eckell, for appellees.
Judges Craig and Colins and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig. Judge Colins dissents. Judge Williams, Jr. did not participate in the decision in this case.
The Borough of Media appeals an order of the Common Pleas Court of Delaware County which reversed the borough zoning hearing board's denial of a variance for property owned by Dr. and Mrs. Larry Rendin. We must determine*fn1 whether the common pleas court erred in concluding (1) that the owners' continued office space use in part of their property, now zoned R-1 for residence use exclusively, is a lawful nonconforming use; and (2) that the owners have a vested right to continue that use.
Dr. and Mrs. Rendin purchased a large single-family detached house and lot at 700 North Jackson Street, Media, in 1948. At that time, the property was zoned R-1a under a 1938 zoning ordinance. Section 301 of the ordinance then listed the uses permitted in an R-1 district. Subsection 301(7) provided:
Accessory use of the same lot with and customarily incidental to any of the above permitted uses, including a private garage; also professional office or studio for the personal use of a doctor or physician, . . . PROVIDED, that the office . . . is located in the residence or in a building attached thereto. . . .
Additionally, section 301.1*fn2 of that ordinance permitted apartment houses in R-1a districts, and section 310*fn3 permitted business or professional offices in R-1b districts.
From 1948 until 1955, Dr. Rendin used the first floor of his house as offices for his medical practice, and lived with his family on the second floor, apparently a permitted use under section 301(7) of the 1938 ordinance.*fn4 In 1955, Dr. Rendin moved his family residence out of the house on Jackson Street, and rented out the upper floor as two small apartments. Although Dr. Rendin continued to use the lower floor as his medical offices, that accessory use then contravened the quoted proviso in subsection 301(7), which allowed property in an R-1 district to be used as professional office space only if the practitioner resided in the building. However, the Rendins moved their residence back into the house on Jackson Street in 1967, so that the use once again came into compliance with subsection 301(7).
A subsequent 1967 amendment to the 1938 ordinance expressly deleted sections 301.1 and 310, thereby eliminating the R-1a and R-1b districts. The amendment created a new zoning classification, R-AO, applicable to the Rendin property, to replace the R-1a and R-1b districts, and added ...