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BARBARA B. ERNSBERGER v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH AND VIKRAM PEARCE (09/16/87)

decided: September 16, 1987.

BARBARA B. ERNSBERGER, GALVIN DEVORE, ROSEMARY DEVORE AND MARY ANN SCHMERTZ, APPELLANTS
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH AND VIKRAM PEARCE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Community Advisory Board of Shadyside, Galvin Devore, Rosemary Devore and Mary Ann Schmertz v. Zoning Board of Adjustment of the City of Pittsburgh v. Vikram Pearce, No. SA 924 of 1985.

COUNSEL

James W. Carroll, Jr., Tabakin, Carroll & Curtin, for appellants.

Samuel P. Kamin, for appellee.

Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 109 Pa. Commw. Page 375]

Barbara B. Ernsberger, Galvin Devore, Rosemary Devore and Mary Ann Schmertz (Appellants) appeal from an order of the Allegheny County Court of Common Pleas which affirmed a decision of the Pittsburgh Zoning Board of Adjustment (Board). We affirm.

Appellants are a group of residents of the Shadyside section of Pittsburgh who live near a building owned by Vikram Pearce (Owner). Owner bought the building on May 24, 1982 from Janet Klein Robbins for $100,000. At settlement, an agent of Robbins produced an occupancy permit dated April 9, 1981, which purported to permit three residential units in the building, and a Certificate of Zoning Classification and Legality of Use (Certificate) dated May 19, 1982. The Certificate, which was signed by a Pittsburgh city zoning official, acknowledged that the occupancy permit had been issued, that the property is located in an R-2 District in which no more than two families are allowed per dwelling, and further noted that "[t]he stated occupancy is not in accord with the use provisions of the Zoning Ordinance but qualifies as a legal nonconforming use."*fn1

Sometime after Owner took possession of the property, the Bureau of Building Inspection of the City of Pittsburgh received a complaint about the use Owner was making of his building. Apparently because the Bureau could not find in its records an occupancy permit allowing the building to be used as a three-family dwelling, it sent a letter to Owner on August 30, 1984 notifying Owner that an occupancy permit was required. Owner produced the occupancy permit in his

[ 109 Pa. Commw. Page 376]

    possession numbered 88552. City officials deemed the occupancy permit a forgery. Owner then requested a valid occupancy permit. The zoning administrator denied this request. Owner appealed this denial to the Board.

The Board found that Owner relied on the Certificate in buying the subject property, that Owner spent approximately $100,000 to purchase the property, and that if the property were reduced to two dwelling units the property would diminish in value by approximately $30,000. There was no evidence or argument presented to the effect that the Certificate was anything but genuine.

Representatives of the Pittsburgh Bureau of Building Inspection testified that the occupancy permit is not on file in the Bureau's official records and that the permit's number, No. 88552, is much higher than any that had yet been issued.

The Board held that despite the possibility that the occupancy permit could be a forgery, Owner's good-faith reliance on the Certificate entitled him to a vested right to use the building to house three families. No evidence was presented concerning whether the three-family occupancy was in fact a nonconforming use.

The Common Pleas Court affirmed the Board's decision. Appellants now bring the case before this Court for our consideration.

This Court has held that where, as in the case sub judice, the Common Pleas Court takes no additional evidence in affirming a decision of the Board finding a vested right, our scope of review on appeal is limited to determining whether the Board committed an error of law or an abuse of discretion. Highland Park Community Club of Pittsburgh v. Zoning Board of Adjustment of ...


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