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URSULA FELDMAN v. ZONING HEARING BOARD CITY PITTSBURGH (05/14/85)

decided: May 14, 1985.

URSULA FELDMAN, APPELLANT
v.
THE ZONING HEARING BOARD OF THE CITY OF PITTSBURGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Ursula Feldman v. The Zoning Board of Adjustment of the City of Pittsburgh, No. SA 360 of 1983.

COUNSEL

John H. Bingler, Jr., with him, Michael R. Bucci, Jr., Thorp, Reed & Armstrong, for appellant.

Kellen McClendon, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for appellee.

Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 89 Pa. Commw. Page 238]

This appeal is taken by Ursula Feldman, (Appellant) from an order of the Court of Common Pleas of Allegheny County (trial court) which affirmed an order of the Zoning Board of Adjustment of the City of Pittsburgh (Board) partially denying Appellant's request for a special exception. We reverse and remand.

Appellant is the owner of a parcel of real estate located in a C-3 Commercial District of the City of Pittsburgh on which she and her husband have operated a gasoline service station consisting of the retail sale of gasoline, automobile repairs and inspections since 1962. This use of the property constitutes a pre-existing, nonconforming use in an existing, nonconforming structure authorized by an occupancy permit issued in 1967.

[ 89 Pa. Commw. Page 239]

Appellant applied for a special exception to substantially renovate the existing, nonconforming structure and convert its use from an automobile repair shop to a convenience store. In conjunction with the remodeling of the building, Appellant also proposed to replace the existing gasoline pumps and storage tanks with more modern pumps and tanks and to continue to sell gasoline. The special exception was denied by the Zoning Administrator. On appeal the Board found that the proposed convenience store is a permitted use and granted the special exception with respect to the renovation of the structure and its use as a convenience store. The Board, however, denied Appellant's proposal to continue to sell gasoline.

Appellant appealed to the trial court which took no additional evidence and, on the basis of the record made before the Board, affirmed the Board's order. Appellant now appeals to this Court. When no additional testimony is taken by the trial court, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. Fiechter v. Zoning Hearing Board of Pennsburg Township, 73 Pa. Commonwealth Ct. 253, 458 A.2d 616 (1983).

Appellant applied for a special exception to rehabilitate the existing, nonconforming structure from an automobile repair shop to a convenience store with gasoline service. The Board granted the special exception as it pertained to the changes in use and rehabilitation of the structure. The Board noted that Appellant must comply with building code requirements but stated that "the convenience store is a permitted use and will be allowed to move forward." Because no appeal from this part of the Board's decision was taken by the Appellee and Appellant does not dispute this part of the Board's decision, we need not

[ 89 Pa. Commw. Page 240]

    examine further the question of changes in the use and ...


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