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ROBERT M. KOZIEL AND SANDRA M. KOZIEL v. ZONING HEARING BOARD BOROUGH WAYNESBORO ET AL. (12/12/88)

decided: December 12, 1988.

ROBERT M. KOZIEL AND SANDRA M. KOZIEL, HIS WIFE, APPELLANTS
v.
ZONING HEARING BOARD OF THE BOROUGH OF WAYNESBORO ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Franklin County, in the case of Robert M. Koziel and Sandra M. Koziel, his wife v. Zoning Hearing Board of the Borough of Waynesboro and Michael G. Buehler and Georgia Buehler, his wife, Paul L. West, Joseph E. Noel and Marilyn Noel, his wife, Charles F. Standridge, and David C. Weber and Donna Weber, his wife, Miscellaneous Docket Volume Y, Page 552.

COUNSEL

William S. Dick, Maxwell, Maxwell, Dick & Walsh, for appellants.

Stephen E. Patterson, Patterson, Kaminski, Keller and Kiersz, for appellees.

Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Barry. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Judge Doyle.

Author: Barry

[ 122 Pa. Commw. Page 15]

Appellants Robert and Sandra Koziel purchased property in the Borough of Waynesboro in 1985. Their purpose in buying the property was to convert an existing house on the property into a two-family dwelling and offer both apartments for rent. Prior to the purchase, appellants had obtained a permit from the borough to make the planned conversion. After purchase, appellants proceeded with the conversion and made expenditures of $2309.00 plus the value of appellants' labor in doing so. A borough inspector visited the premises after the work was completed and expressed his approval of the work. Subsequently, appellants were contacted by a zoning officer and told that their converted property would violate a zoning ordinance concerning minimum lot size per family. Appellants were told that they would have to apply for a variance.

[ 122 Pa. Commw. Page 16]

The application for a variance was made and a hearing was held before a zoning hearing board. The board denied the application and appeal was taken to the Court of Common Pleas of the 39th Judicial District, Franklin County Branch. The court took additional evidence, including testimony that appellants' combined income is $47,000.00. The court ultimately affirmed the board and appeal was taken to this court. Several persons residing near the property in question are intervenors in this case and were also represented in the proceedings before the board and the trial court.

Our scope of review in a zoning appeal where additional evidence is taken by the trial court is limited to a determination of whether the trial judge committed an abuse of discretion or made an error of law. Mont-Bux, Inc. v. Township of Cheltenham, 36 Pa. Commonwealth Ct. 397, 388 A.2d 1106 (1978).

Appellants' argument throughout the proceedings has been that they have acquired vested rights in the use of the property as modified because of the erroneously issued building permit. This vested rights doctrine is set forth in the controlling case of Petrosky v. Zoning Hearing Board of Upper Chichester Township, 485 Pa. 501, 402 A.2d 1385 (1979), in which the Supreme court described the five part test under which a property owner may acquire vested rights because of an improperly issued permit. We will not examine the test as a whole because four of the parts are not at issue. The only issue before us is whether appellants established the expenditure of substantial unrecoverable sums on their part.

The trial court found that $2,000.00 of the funds expended by appellants is unrecoverable. The court acknowledged in its opinion that appellants have suffered harm due to the incompetence of the zoning officers, but decided that the loss suffered did not reach the level

[ 122 Pa. Commw. Page 17]

    of hardship necessary under the vested rights doctrine. The court based this decision on the situations presented by prior case law. There are no prior cases where a sum as small as ...


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