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JOEL M. PRICE AND MARK WOLFORD AND STEVE HVIZDZAK v. ZONING HEARING BOARD TOWNSHIP BRADFORD ET AL. JOEL M. PRICE AND MARK WOLFORD (06/06/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 6, 1988.

JOEL M. PRICE AND MARK WOLFORD AND STEVE HVIZDZAK, JR.
v.
THE ZONING HEARING BOARD OF THE TOWNSHIP OF BRADFORD ET AL. JOEL M. PRICE AND MARK WOLFORD, APPELLANTS

Appeal from the Order of the Court of Common Pleas of McKean County, in the case of Joel M. Price, Mark Wolford and Steve Hvizdzak, Jr. v. The Zoning Hearing Board of the Township of Bradford, Myron Crumrine, Chairman, Arthur Slike, Thomas Ordiway, James Burns, and Gerald Boser, Members, No. 11 E.D. of 1986.

COUNSEL

Gregory A. Henry, for appellants.

William J. Kubiak, McDowell, McDowell, Wick & Daly, for intervenor, Lewis E. Egbert.

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

Author: Craig

[ 116 Pa. Commw. Page 568]

Joel Price, Mark Wolford, and Steve Hvizdzak, Jr., (objectors) appeal an order of the Court of Common Pleas of McKean County, affirming a decision of the Zoning Hearing Board of Bradford Township and granting the intervenor, Lewis Egbert, a building permit and certificate of zoning compliance.

The facts as found by the trial court are as follows. In April 1986, Egbert purchased a structure located at 434 South Avenue from the Fraternal Order of the Eagles (FOE). The FOE had used the structure since 1947 as a club meeting hall, and for club dinners and dances, with a bar for club members. On December 1, 1985, the FOE stopped using the building.

In 1963 the township passed a zoning ordinance which placed the FOE building in an R-6 residential district. The FOE's use of the building as a meeting hall for a fraternal organization was not a permitted use in the R-6 district. However, because the FOE had legally used the building since 1947, FOE's use after the 1963 zoning ordinance had constituted a legal non-conforming use.

On April 21, 1986, Egbert filed a zoning application to build an addition to the structure. The application stated that Egbert intended to use the building as a restaurant

[ 116 Pa. Commw. Page 569]

    and bar. The zoning officer issued a building permit and a certificate of zoning compliance. The objectors appealed to the Bradford Township Zoning Hearing Board. The board affirmed the decision of the zoning officer.

On this appeal from the trial court's affirmance of the decision of the zoning hearing board, the issue is whether the trial court erred in concluding that Egbert's proposed use of the building as a restaurant and bar is a continuation of the FOE's nonconforming use. Because we conclude that Egbert's proposed use is not a continuation of the FOE's non-conforming use, we reverse.*fn1

Where, as in this case, the trial court takes additional evidence, our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. Metzger v. Zoning Hearing Board of the Township of Warrington, 85 Pa. Commonwealth Ct. 301, 481 A.2d 1234 (1984).

In determining whether a use is continuation of legal non-conforming use, the court must determine whether the use is similar to or different from that of the previous owner. Bevans v. Hilltown Township, 72 Pa. Commonwealth Ct. 227, 457 A.2d 977 (1983). In affirming the zoning hearing board, the trial court concluded that "the nature and extent of the use proposed by Egbert is not substantially different from the non-conforming use that existed in 1963."

In order to determine whether the non-conforming use and the proposed use are the same, "[w]e must look to the applicable zoning ordinance's structure as our

[ 116 Pa. Commw. Page 570]

    chief guide with respect to how uses are categorized for the particular municipality." Gustin v. Zoning Board of Sayre Borough, 55 Pa. Commonwealth Ct. 410, 412, 423 A.2d 1085, 1086 (1980); see R. Ryan, Pennsylvania Zoning Law and Practice ยง 4.2.1 (1970). The Bradford Township Zoning Ordinance only permits "meeting halls for private clubs, lodge or fraternal organizations" -- which was the former use of the property by FOE -- in an R-6 district, by special exception. The R-6 district does not allow restaurants or bars, either as permitted uses or as special exceptions.

A restaurant and bar, the proposed use by Egbert, is permitted only in C-N, C-1, and C-2 districts. None of those commercial districts permit meeting halls for clubs or fraternal organizations.

Thus, as designated by the zoning ordinance, Egbert's use of the building as a restaurant is different from the FOE's use of the building as a meeting hall. Therefore, the trial court committed an error of law in concluding that Egbert's proposed use was a continuation of the FOE's non-conforming use. Bevans.

Accordingly, we reverse.

Order

Now, June 6, 1988, the order of the Court of Common Pleas of McKean County, at No. 11 Equity Docket of 1986, dated January 9, 1987, is reversed.

Disposition

Reversed.


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