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WILLIAM D. SPARGO v. ZONING HEARING BOARD MUNICIPALITY BETHEL PARK AND MUNICIPALITY BETHEL PARK (07/28/89)

decided: July 28, 1989.

WILLIAM D. SPARGO, APPELLANT,
v.
ZONING HEARING BOARD OF THE MUNICIPALITY OF BETHEL PARK AND MUNICIPALITY OF BETHEL PARK, APPELLEES



Appeal from Allegheny Common Pleas Court, Honorable S. Louis Farino, Judge.

COUNSEL

Patrick R. Riley, Thomas J. Michael, Riley & DeFalice, P.C., Pittsburgh, for appellant.

John Linkosky, Victor R. Delle Donne, Baskin, Flaherty, Elliott & Mannino, P.C., Pittsburgh, for appellees.

Barry and Smith, JJ., and Narick, Senior Judge.

Author: Smith

[ 128 Pa. Commw. Page 196]

Appellant, Dr. William D. Spargo, D.D.S. (Dr. Spargo), appeals from a decision of the Court of Common Pleas of Allegheny County, Pennsylvania, upholding the finding of the Zoning Hearing Board of Bethel Park (Board) that Dr. Spargo was in violation of Bethel Park Zoning Ordinance No. 12-19-66A of November 14, 1966, as amended in 1981 (Ordinance). The trial court's decision is affirmed.

Dr. Spargo is the owner of property located at 3209 Wellsview Road in the municipality of Bethel Park, Pennsylvania (Bethel Park). In March, 1972 Dr. Spargo was issued a building permit by Bethel Park for minor interior renovations of the property to accommodate its use as his dental office. Under the zoning ordinance in effect at the time, the property was zoned as an R-3 District. N.T., September 21, 1987 Hearing, p. 5. Among the permitted uses enumerated in the applicable Ordinance in an R-3 zoned district is a one-family detached dwelling and certain accessory uses. Ordinance, Article III, § 301 and N.T., September 21, 1987 Hearing, p. 5. Accessory use is defined in the ordinance as "[a] building or use customarily incidental and subordinate to the principal building or use and located on the same lot with such principal building or use." Ordinance, Article II, § 202. Among the accessory uses permitted in an R-3 zoned district is a "home occupation" which is defined in pertinent part as "[a]n accessory use of a service character customarily conducted within a dwelling by the residents, which is clearly secondary to the use of the dwelling for living purposes and does not change the character thereof or have any exterior evidence of such secondary use other than a small name plate, . . . ." Ordinance, Article II, § 202. A dental office was permitted as a home occupation accessory use of the dwelling and no more than one employee was permitted at a home occupation accessory use under the ordinance. Ordinance, Article II, § 202.

[ 128 Pa. Commw. Page 197]

During the course of Dr. Spargo's renovation of the property in 1972, Bethel Park's building inspector visited the property and found the renovation to be in compliance with the building permit issued. Subsequent to the building inspector's initial visit to the property and after the dental office had been installed, the building inspector again observed the property. During the subsequent visit, the building inspector noted that the property was equipped with sleeping quarters and kitchen facilities and that Dr. Spargo had a driver's license, voter registration and various other documents indicating that he resided at the property. N.T., September 21, 1987 Hearing, pp. 19-20. There is no evidence of record that any municipal zoning officers, building inspectors or other municipal officials visited the premises subsequent to 1972 until Mr. Richard Baker, municipal zoning officer for Bethel Park, observed the interior of the property shortly before August 10, 1987. Mr. Baker observed that the vast majority of the property was being used for dental office purposes, observed more than one employee and determined that the dental office was not clearly secondary to a residential use of the property. N.T., September 21, 1987 Hearing, pp. 25-27. On August 10, 1987, Mr. Baker issued a notice of a violation to Dr. Spargo, directing him to cease operation of his business for violation of the home occupation requirements of the zoning ordinance. N.T., September 21, 1987 Hearing, pp. 24, 27.

Dr. Spargo filed a notice of zoning appeal dated August 13, 1987 with the Board. After a hearing on September 21, 1987, the Board denied Dr. Spargo's request to continue using the property for dental office purposes and issued findings of fact, conclusions of law and an order so stating. Dr. Spargo appealed the Board's decision to the trial court which dismissed Dr. Spargo's appeal. Dr. Spargo thereafter petitioned this Court for review.

The trial court took no additional evidence in this matter. Therefore, this Court's scope of review is limited to determining whether the Board committed any abuse of discretion or error of law, and the reviewing court may not

[ 128 Pa. Commw. Page 198]

    disturb the Board's findings of fact if they are supported by substantial evidence. Borough of Malvern v. Jackson, 108 Pa. Commonwealth Ct. 248, 529 A.2d 96 (1987).

I.

Dr. Spargo's first assertion on appeal is that he had a vested right to operate his dental office on the property in question.*fn1 This Court established a five-pronged test for vested rights cases in Department of Environmental Resources v. Flynn, 21 Pa. Commonwealth Ct. 264, 344 A.2d 720 (1975). The Pennsylvania Supreme Court adopted this five-pronged test in Petrosky v. Zoning Board of Upper Chichester Township, 485 Pa. 501, 402 A.2d 1385 (1979). These five prongs or factors which must be weighed in determining whether one has acquired vested rights as a result of a permit issued by the government are:

1. A person's due diligence in attempting to comply with the law;

2. A person's good faith throughout the proceedings;

3. The expenditure of substantial unrecoverable funds;

4. The expiration without appeal of the period during which an appeal could have been taken from the issuance of the permit;

5. The insufficiency of the evidence to prove that individual property rights or the ...


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