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D.E. STREET v. ZONING HEARING BOARD BOROUGH WEST YORK AND CAROL FEESER (01/09/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 9, 1987.

D.E. STREET, INC. AND DENNIS STREET, APPELLANTS
v.
ZONING HEARING BOARD OF THE BOROUGH OF WEST YORK AND CAROL FEESER, APPELLEES

Appeal from the Order of the Court of Common Pleas of York County, in case of D.E. Street and Dennis Street v. Zoning Hearing Board of the Borough of West York and Carol Feeser, No. 85-SU-01893-08.

COUNSEL

Daniel L. Carn, Carn & Vaughn, for appellants.

John W. Stitt, Stitt and Stitt, for intervenor, Carol Feeser.

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

Author: Palladino

[ 103 Pa. Commw. Page 128]

Dennis Street (Appellant) appeals from an order of the York County Court of Common Pleas affirming a decision

[ 103 Pa. Commw. Page 129]

    of the Zoning Hearing Board of the Borough of West York (Board) which found that Appellant's use of the premises at 1046 West Market Street exceeded the scope of the permitted office use. We reverse.

Appellant is a roofing and siding contractor. In the spring of 1984 he sought and was given oral permission to use the first floor of his property at 1046 West Market Street as an office by the West York zoning officer. This property was located in a C-Commercial District.*fn1 Section 7.02B of the West York's Zoning Ordinance lists "office" as a permitted use in this district and Section 10.07B.3*fn2 requires one off-street parking space for each 400 square feet of office floor area, which Appellant provided.

During December 1984, Appellant began parking his business vehicles on South Dewey Street, a public

[ 103 Pa. Commw. Page 130]

    street, without metered spaces, adjacent to his property. Complaints were made to the zoning officer about this practice. At the February 18, 1985 meeting of the West York Borough Council, neighboring property owners appeared to complain about Appellant's vehicles being continually parked on South Dewey Street. It was at this meeting that Appellant's permit to use his property as an office was made known to the public.

On February 21, 1985 Carol Feeser (Intervenor) challenged the validity of Appellant's use of his property. A hearing on the challenge was held at which Appellant contested Intervenor's standing to challenge and the timeliness of the challenge.

The Board concluded that Intervenor had standing and that her challenge was timely. On the validity of Appellant's use, the Board found that Appellant's parking of his business vehicles on South Dewey Street exceeded the permitted office use. The Board concluded that Appellant's use had evolved into that of a special trade contractor, a use not permitted in a C-Commercial District.*fn3 Appellant appealed the Board's decision to the Court of Common Pleas of York County, which affirmed the Board's decision. An appeal to this Court followed.

Appellant here raises the same issues of standing and timeliness, as to the Intervenor, and the validity of the decision that he had exceeded the scope of the office use permitted within a C-Commercial District.

Our scope of review, when the trial court takes no additional evidence, is limited to determining whether the Board's findings of fact are supported by substantial evidence, the Board abused its discretion or committed

[ 103 Pa. Commw. Page 131]

    an error of law. Johnson v. Zoning Hearing Board of Richland Township, 95 Pa. Commonwealth Ct. 82, 503 A.2d 1117 (1986). We will first address Appellant's arguments concerning the propriety of Intervenor's challenge and then consider his contentions with respect to the Board's determination that he exceeded the scope of the permitted office use.

As to standing, Section 1007 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11007, gives standing to challenge a use permitted on the land of another to persons aggrieved by the use. In order to be a person aggrieved, the person must have a direct interest that is adversely affected by the action sought to be challenged. Mosside Associates, Ltd. v. Zoning Hearing Board of the Municipality of Monroeville, 70 Pa. Commonwealth Ct. 555, 454 A.2d 199 (1982). Intervenor resides across the street from Appellant's property and the lack of parking created by Appellant's use of the public parking spaces has a direct and adverse impact on Intervenor's use of her property. She has standing to challenge his use.

On the timeliness issue Appellant contends that Intervenor has been aware that he was conducting a business at his property since the spring of 1984 and, therefore, her challenge on February 18, 1985 was not made within the thirty days mandated by Section 915 of the Code, 53 P.S. § 10915. However, the record contains substantial evidence to support the Board's finding that Intervenor did not have knowledge of Appellant's permit to use his property as an office until the February 18, 1985 hearing. Her challenge on February 21, 1985 was therefore timely.

[ 103 Pa. Commw. Page 132]

As to whether a permitted use has been exceeded, it is first necessary to interpret what the permitted use allows. Barnhart v. Zoning Hearing Board of Nottingham Page 132} Township, 49 Pa. Commonwealth Ct. 481, 411 A.2d 1266 (1980). "Office" is not defined in the Zoning Ordinance, but the Board accepted Appellant's definition of an office as the "building, room, series of rooms in which the affairs of a business are carried on." Board's Conclusions, No. 3.c.

Here the Board found that Appellant was using his property as an office. Board's Findings of Fact, Nos. 2, 4, 14. However, the Board determined that, after Appellant began parking his business vehicles on the public street, his activities, in addition to the permitted office use, included "the marshalling, storage, and dispatching of a 'fleet' of construction vehicles on, about, or from the site of a business facility." Board's Conclusions, No. 3.d. These activities, according to the Board, were in excess of an office use and constituted a special trade contractor use. Id. at 3.d. (iii).

Special trade contractor is not defined in the Zoning Ordinance.*fn4 However, it is not necessary for us to determine whether these activities fall within the definition of a special trade contractor because the Board's findings of fact do not support a conclusion that marshalling, storage and dispatching were occurring.*fn5

[ 103 Pa. Commw. Page 133]

Therefore, the Board's conclusion that Appellant's use was that of a special trade contractor was unreasonable and constitutes an abuse of discretion. See Isaacson v. Flanagan, 74 Pa. Commonwealth Ct. 564, 460 A.2d 884 (1983).

It is clear from the record, and Appellant does not dispute, that Appellant was parking business vehicles on a public street all night and on weekends, making it difficult for other residents of the area to find parking. This, in and of itself, is not sufficient to constitute a violation of a permitted use. The use of the property itself must exceed that of an office. The record contains no evidence that Appellant was doing other than conducting the affairs of his business. Intervenor is attempting to use a zoning ordinance to remedy a parking problem

[ 103 Pa. Commw. Page 134]

    which is adversely impacting on her use of her residence. A zoning ordinance cannot be used to cure a parking problem on a public street.

Accordingly, we reverse.

Order

And Now, January 9, 1987, the order of the York County Court of Common Pleas, in the above-captioned matter, is reversed.

Disposition

Reversed.


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