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decided: March 26, 1986.


No. 2 W.D. Appeal Dkt. 1985. Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1354 C.D. 1983, dated May 14, 1984, which Reversed the Order of the Civil Division of the Court of Allegheny County, Pennsylvania, at S.A. 31 of 1983, dated April 22, 1983, which had affirmed the Decision of the Zoning Board of Adjustment of the City of Pittsburgh dated December 16, 1982, in Zoning Case No. 339 of 1982. 82 Pa. Commonwealth Ct. 380, Nix, C.j., and Larsen, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a dissenting opinion in which Larsen, J., joins. Flaherty and Papadakos, JJ., did not participate in the consideration or decision of this case.

Author: Hutchinson

[ 509 Pa. Page 607]


A Pittsburgh property owner, Jack Holzapfel, (appellant), appeals by allowance an order of Commonwealth Court, reversing the Allegheny County Court of Common Pleas in a zoning case. Common Pleas had affirmed the action of the Pittsburgh Zoning Board of Adjustment in denying the appeal of the Highland Park Community Club and others (appellees before us), protesting the action of the City Zoning Administrator. The Administrator had approved a certificate of occupancy for six dwelling units in appellant's property, which is located in a residential district zoned for one and two family residences, on the assumption that the passage of time had converted an improper nonconforming use into one that was lawful. While reaching opposite conclusions, both Commonwealth Court and Common Pleas considered the landowner's "vested right" to this multiple occupancy certificate the principal issue in the case. The record does not show appellant attempted to obtain a valid permit. He used the premises in violation of safety regulations until and after the regulatory authorities notified him of those violations. We hold he did not obtain a "vested right" to his nonconforming use and affirm the Commonwealth Court.

The facts in this case appear as follows.*fn1 Appellant testified before the Zoning Board of Adjustment that he purchased the subject residential property at 5814 Wellesley Avenue in the Highland Park section of Pittsburgh in 1971. The District has been a Two-Family Residence District at least since 1923 when that type of district was designated a

[ 509 Pa. Page 608]

"B" residence district in accordance with Section 9 of Ordinance No. 372 of 1923. Since then only one family and two family dwellings have been among the uses permitted by the Zoning Code in such districts, now identified as R2.*fn2

Appellant testified that at the time he purchased it the building contained seven dwelling units. On cross-examination, he conceded that he knew the property was in an R2 District. No evidence was given on whether his grantor had complied with the Act of July 27, 1955, P.L. 288, as reenacted and amended by the Act of May 11, 1959,*fn3 21 P.S. §§ 611-615, (Supp. 1985), which requires a seller to deliver to the purchaser, not later than at the settlement, a use registration permit showing the property's legal use and zoning classification.*fn4 21 P.S. § 611(b). Nor is there any indication in the record that an occupancy permit for multiple dwelling units was ever sought by appellant from the Superintendent of Building Inspection, the official with jurisdiction to issue it, until appellant was directed to do so by that office in late 1975 or early 1976.*fn5 The record does contain appellant's January 13, 1976 application for an occupancy permit. However, a June 4, 1976 response from the Superintendent of Building Inspection shows that the application would not be approved until a second means of egress was provided for each unit, the interior stairway was

[ 509 Pa. Page 609]

    enclosed, fire doors were installed at every floor level and a two-hour fire enclosure was provided for the furnance.*fn6

Appellant then applied for a Building Permit for the furnace enclosure. The inspection record notes that work on the building had not begun on June 25, 1976, July 13, 1976 or August 5, 1976. On January 28, 1977, the inspector wrote "Revoke[,] work not started[,] occupancy has 7 apts. not 6[,] 2 in Basement." Record, Exhibit 8. Upon being advised that approval for seven units would require an appeal to the Board of Zoning Adjustment and the Board of Standards and Appeals established under Section 305 of the Building Code, Ordinance No. 300, effective November 4, 1947, appellant wrote to the Bureau of Building Inspection in October of 1977, stating that he would eliminate one of the apartments in the basement upon termination of his tenant's lease ten months later, at the end of August 1978.

On November 2, 1977, a new Building Permit was issued to complete the enclosure of the furnace room, the original Building Permit issued in June 1976 apparently having been revoked or having expired by operation of Section 220 of the Building Code of 1947.*fn7 On December 12, 1977, a Building Permit for the installation of fire escapes, as a second means of egress for the building tenants, was issued to a contractor.*fn8 Although appellant stated that he was advised that he had not received an Occupancy Permit

[ 509 Pa. Page 610]

    because the original 1976 application was lost, it would appear that the Bureau properly refused to issue such a permit in the absence of the safety measures required by the Building Code and that thereafter the earlier Building Permit was revoked or expired by operation of law.

Eventually in July of 1979, appellant filled out a new application for a Certificate of Occupancy. The Zoning Code Administrator approved this later application for an Occupancy Permit on July 25, 1979.*fn9 Based, presumably, on the completion of the safety installations, the Superintendent of the Bureau of Building Inspections issued a Certificate of Occupancy on October 10, 1979.*fn10

Learning of the issuance of this permit in the spring of 1982, appellees filed an appeal with the Board of Zoning Adjustment, protesting the action of the Zoning Administrator in approving multiple occupancies in an R2 district. A hearing before the Zoning Board of Adjustment was held on June 10, 1982, at which the testimony primarily addressed: the duration of multiple occupancy on the premises, appellant's applications for occupancy and building permits and appellant's expenditures for the safety installations required by the Building Code. The Board denied the appeal on December 16, 1982. Its "Findings of Fact" ...

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