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BRIGHTON ENTERPRISES v. CITY PHILADELPHIA AND ZONING BOARD ADJUSTMENT (03/05/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 5, 1986.

BRIGHTON ENTERPRISES, INC., APPELLANT
v.
CITY OF PHILADELPHIA AND ZONING BOARD OF ADJUSTMENT, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Brighton Enterprises, Inc v. City of Philadelphia and Zoning Board of Adjustment, No. 3620 June Term, 1984.

COUNSEL

Norman A. Oshtry, for appellant.

Joy J. Bernstein, Assistant City Solicitor, for appellees.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 95 Pa. Commw. Page 410]

Brighton Enterprises, Inc. appeals from an order of the Court of Common Pleas of Philadelphia County which affirmed the Zoning Board of Adjustment of the City of Philadelphia, denying Brighton's request for a variance. We reverse and remand.

On March 4, 1981, city council amended the Philadelphia Zoning Code to include amusement arcades as a regulated use.*fn1 On January 19, 1984, Brighton, a

[ 95 Pa. Commw. Page 411]

    lessee of a lot at 120 South 13th Street located in a C-5 Commercial Zone, applied to the Department of Licenses and Inspections for a permit to use its property for a "shoemaker-jewelry shop and repairs, sandwich shop, adult movie theatre, adult bookstore, adult peepshow, coin-operated vending (24), health spa and 21 pinball machines."*fn2 The department denied the use permit because the twenty-one pinball machines were a regulated use not permitted in a C-5 Commercial Zone.*fn3

Brighton appealed the department's denial to the board on the ground that between fifteen and twenty-one pinball machines had been used continuously on the property before the ordinance was enacted, and

[ 95 Pa. Commw. Page 412]

    therefore the use was a legal nonconforming use.*fn4 The board, after hearing, affirmed the decision of the department. The board decision contained no finding on the nonconforming use issue*fn5 After Brighton appealed to the court of common pleas, the court found that Brighton failed to prove the existence of a non-conforming use and affirmed the board. This appeal followed.

Brighton argues that the trial court exceeded its scope of review because without receiving additional evidence, it made a finding of fact not made by the board. We agree.

The Local Agency Law, 2 Pa. C.S. ยง 754(a) and (b), governs our scope of review in appeals of adjudications of Philadelphia agencies to the court of common pleas. Foley v. Civil Service Commission of the City of Philadelphia, 55 Pa. Commonwealth Ct. 594, 423 A.2d 1351 (1980). Because the Local Agency Law applies here, we are bound by our decision in Frey v. Zoning Board of Adjustment of the City of Philadelphia, 74 Pa. Commonwealth Ct. 360, 459 A.2d 917 (1983), where we held:

Under Section 754(b) of the Local Agency Law, which applies here, a common pleas court may not make its own findings of fact when it has not taken additional evidence. See Ramondo v. Zoning Hearing Board of Haverford Township, 61 Pa. Commonwealth Ct. 242, 434 A.2d 204 (1981); Foley v. Civil Service Commission

[ 95 Pa. Commw. Page 413]

    of the City of Philadelphia, 55 Pa. Commonwealth Ct. 594, 423 A.2d 1351 (1980). If a local agency, in this case the Board, has made inadequate factual findings, the reviewing court normally can and should remand the matter to the agency to obtain the essential factual determinations. See Tucker v. Zoning Board of Adjustment of the City of Pittsburgh, 62 Pa. Commonwealth Ct. 615, 437 A.2d 499 (1981).

74 Pa. Commonwealth Ct. at 362, 459 A.2d at 918-19.

Because the trial court exceeded its scope of review, we reverse the order of the trial court, and remand this case for the trial court to return it to the Zoning Board of Adjustment of the City of Philadelphia.

For guidance upon remand, we note that the issue is not whether there has been an abandonment of the nonconforming use, which the objectors have the burden to prove, Sullivan v. Zoning Board of Adjustment, 83 Pa. Commonwealth Ct. 228, 478 A.2d 912 (1984), but whether the existence of the nonconforming use has been established, a matter which the applicant, Brighton, has the burden to prove. Glenn Little v. Zoning Hearing Board of Abington Township, 24 Pa. Commonwealth Ct. 490, 357 A.2d 266 (1976). An abandonment issue could follow, but only if there is a basis for finding that a legal nonconforming use existed in the first place.

Order

Now, March 5, 1986, we reverse the order of the Court of Common Pleas of Philadelphia County at No. 3620, dated February 4, 1985, and remand this case to the trial court with a direction that the record be returned to the Zoning Board of Adjustment of the City of Philadelphia for the necessary finding(s).

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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