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MUNICIPALITY MONROEVILLE v. ZONING HEARING BOARD MONROEVILLE MATTER WALTER SISCO AND STYLES BY SISCO (09/20/85)

decided: September 20, 1985.

THE MUNICIPALITY OF MONROEVILLE, APPELLANT
v.
THE ZONING HEARING BOARD OF MONROEVILLE IN THE MATTER OF WALTER SISCO AND STYLES BY SISCO, INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of The Municipality of Monroeville v. The Zoning Hearing Board of Monroeville, in the Matter of Walter Sisco and Styles by Sisco, Inc., No. SA 703 of 1983.

COUNSEL

Gary T. Zolyak, with him, John D. Finnegan, for appellant.

John M. Silvestri, for appellee, Zoning Hearing Board of Monroeville.

James F. McCormick, Papernick & Gefsky, P.C., for intervenor, Styles by Sisco, Inc.

Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Judge Barry did not participate in the decision in this case.

Author: Palladino

[ 92 Pa. Commw. Page 56]

The Municipality of Monroeville (Appellant) appeals a decision of the Court of Common Pleas of Allegheny County (trial court) which affirmed a decision of the Zoning Hearing Board of Monroeville (Board) granting a variance to Walter Sisco (Intervenor). We affirm.

Intervenor is the owner of real property located at 4351 Old William Penn Highway, Monroeville, Allegheny County. Under the provisions of the Monroeville Zoning Ordinance (ordinance), a portion of the property is zoned R-2 Residential and a portion is zoned C-2 Commercial. The property is currently improved with a two-story building which is used as a commercial hair styling business. The Building is located on that portion of the property which is zoned R-2. The operation of a commercial use within the R-2 zoning district constitutes a nonconforming use within a nonconforming structure which was approved by the Board by a special exception granted in 1975.

In May of 1983 Intervenor filed an application for two variances which would allow him to expand the existing structure. The expansion would be accomplished by building an addition to the existing structure. The addition would be located partly on the portion of the property zoned R-2 and partly on the portion of the property zoned C-2. That part of the addition located in the R-2 district would be used by Intervenor to expand his hair styling business. That part of the addition located in the C-2 district would be leased as professional office space. The part of the addition which would lie within the C-2 district does not require a variance as it complies with the restrictions of the ordinance.

[ 92 Pa. Commw. Page 57]

After five hearings, at which testimony was taken from Intervenor and protestants, the Board granted Intervenor a variance from two sections of the ordinance: (1) Section 1301.7,*fn1 which states that where a property is divided into two or more different zoning classifications, each classification shall be treated as a different property, and (2) Section 1306.4*fn2 which states that a nonconforming structure and use thereof shall not be expanded except that the Board may allow limited enlargement of a commercial structure and the use thereof because of the normal growth of business.

Appellant appealed this decision to the trial court which, without taking additional testimony, affirmed the Board's decision. Appellant now brings this appeal. Initially, we note that when the trial court takes no additional evidence, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. ...


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