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CONSTANCE B. RUBY v. CARLISLE ZONING HEARING BOARD ET AL. WILLIAM L. SHELLEY ET AL. (03/04/85)

decided: March 4, 1985.

CONSTANCE B. RUBY, T/A WALNUT BOTTOM TAVERN
v.
CARLISLE ZONING HEARING BOARD ET AL. WILLIAM L. SHELLEY ET AL., APPELLANTS. WILLIAM L. SHELLEY ET AL. V ZONING HEARING BOARD OF BOROUGH OF CARLISLE ET AL. CONSTANCE B. RUBY, T/A WALNUT BOTTOM TAVERN, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Cumberland County in the case of William L. Shelley, W. L. Hall, Louis F. Del Duca and Frances H. Del Duca v. Zoning Hearing Board of Borough of Carlisle v. Constance B. Ruby, t/a Walnut Bottom Tavern, No. 3022 Civil 1983, and in the case of Constance B. Ruby, t/a Walnut Bottom Tavern v. Carlisle Zoning Hearing Board v. William L. Shelley, W. L. Hall, Louis F. Del Duca and Frances H. Del Duca, No. 3039 Civil 1983.

COUNSEL

Dale F. Shughart, Jr., Fowler, Addams, Shughart & Rundle, for appellant/appellee, Constance B. Ruby t/a Walnut Bottom Tavern.

Frances H. Del Duca, Faller & Del Duca, for appellant/appellee, William L. Shelley et al.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers. Judge Williams, Jr., did not participate in the decision in this case.

Author: Rogers

[ 88 Pa. Commw. Page 71]

This is the appeal of William Shelley and other protesting neighbors (Shelley) of Walnut Bottom Tavern, a fire-damaged, lawful nonconforming bar and restaurant, from an order of the Court of Common Pleas of Cumberland County modifying, and affirming as modified, an order of the Carlisle Zoning Hearing Board permitting Constance Ruby, the tavern's owner, to repair and use her property as before.*fn1 Mrs. Ruby has intervened in this appeal.*fn2

The Walnut Bottom Tavern was a nonconforming use in the R-2 Residential District in which it was located. After the tavern was partially destroyed by

[ 88 Pa. Commw. Page 72]

    fire on August 22, 1979, Mrs. Ruby applied for a permit to rebuild. The Carlisle zoning enforcement officer refused the permit on the ground that Section 311(5) of the Carlisle Borough's Codified Ordinances prohibits the restoration of a nonconforming use damaged to the extent of more than fifty percent of its assessed value. Section 311(5) reads as follows:

Damage or Destruction -- In the event that a nonconforming use in any district is destroyed or partially destroyed by fire, explosion, or other cause, or otherwise damaged to the extent of fifty (50%) percent or more of either its assessed valuation (as determined from the assessment rolls effective at the date of damage or destruction) or its bulk of all buildings, structures, and other improvements on the lot, such nonconforming uses shall terminate and the lot shall thereafter be used only for conforming uses.

In any case, whether conforming or nonconforming, the remains of any building so destroyed must be removed from the premises within six (6) calendar months so that the same shall not remain as a nuisance thereon.

Mrs. Ruby appealed the zoning officer's decision to the borough zoning hearing board which conducted a hearing, and on April 10, 1980, issued a decision in which it concluded that the term "assessed valuation" in the ordinance meant "fair market value." The board found that the tavern was damaged to the extent of less than fifty percent of its fair market value and less than fifty percent of its bulk. Accordingly, the board decided that the zoning permit should issue. The common pleas court ...


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