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Rice Family Trust v. City of St. Marys

September 7, 2012

RICE FAMILY TRUST, APPELLANT
v.
CITY OF ST. MARYS



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: March 15, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY JUDGE LEAVITT

The Rice Family Trust (Trust) appeals an order of the Court of Common Pleas of the 59th Judicial District (Elk County Branch) (trial court) denying its land use appeal. The Trust argues that the trial court erred in denying its request for a curative amendment to the City of St. Marys' Zoning Ordinance,*fn1 which the Trust needs to use its property for office and apartment units. For the reasons that follow, we affirm.

The Trust's property (Property) is located at 188 Center Street in St. Marys. The Property consists of a large house, approximately 6,000 square feet in size, and an apartment above a detached garage. The house was originally built as a single-family home but was later converted into several apartment units and an office. The apartments could be configured into three or four units, depending on the preference of the renters.

In April 2010, the Trust purchased the Property in a mortgage foreclosure proceeding to protect its position as a third mortgage lienholder. Prior to its acquisition by the Trust, the Property had undergone a series of different uses, and the applicable zoning ordinances had been revised. The relevant history of those changes follows.

As of 1983, a chiropractor owned the Property, where he lived with his family and operated his chiropractic practice. The 1977 Zoning Ordinance permitted homeowners to set up a home medical office but no other kind of home professional office.*fn2 In 1983, Floyd Howell purchased the Property to use as his principal residence and an office for his public accounting firm, which had its main office elsewhere in St. Marys. The 1977 Zoning Ordinance did not permit Howell's public accounting office use.

In 1995, the newly-formed City of St. Marys enacted a new zoning ordinance, which placed the Property in the Residential Urban District. In that district single-family homes and duplexes were permitted but apartment buildings were not; professional offices, such as public accounting offices, were permitted by special exception. Howell continued to use the Property for his public accounting office, albeit without a zoning permit.

In 1996, Howell converted the house into four apartments and office space. From 1996 until 2009, Howell lived in one of the apartments and rented out the others.

In 2006, the City enacted the current Zoning Ordinance (2005 Zoning Ordinance). As did the 1995 Zoning Ordinance, the 2005 Zoning Ordinance limits the Residential Urban District to single-family detached houses and duplexes. It prohibits professional offices. Offices are permitted for properties abutting arterial streets, but the Property is not on an arterial street as defined by the 2005 Zoning Ordinance.

In 2009, Howell relocated the main office of his public accounting firm to the Property. The City denied his application for a zoning permit. He appealed, requesting a variance, and that appeal is currently pending.

After the Trust purchased the Property, it submitted a curative amendment to the St. Marys City Council, seeking to have the Property rezoned from Residential Urban to Central Business. The Central Business District permits, inter alia, municipal services, banks, medical and dental clinics, professional offices, restaurants and taverns, and retail sales. Because City Council did not act upon the amendment, it was deemed denied under Section 916.1(f)(1) of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10916.1(f)(1).*fn3 The Trust appealed to the trial court, which conducted a hearing.

At that hearing, Howell testified about his knowledge of and experience with residential and commercial properties in the St. Marys area. He is not a licensed real estate broker. Directly across the street from the Property, in the Residential Flexible District,*fn4 is a multilevel apartment building. Next door is an American Legion Club in the Central Business District.*fn5 On the other side of the Property is a residence, and behind the Property is a single-family home. Howell conceded that the house on the Property could be converted into a duplex but that "it would [not] be the best economic [use]." Notes of Testimony, 1/11/11, at 51 (N.T. __); R.R. 62a.

Timothy Rice testified that the Trust sought the curative amendment "to use [the Property] as an economic return as best as [the Trust] can for the real estate market to return." N.T. 16; R.R. 27a. The Trust wanted to continue to use the house on the Property as an office and four apartments.Rice did not know if it would be economically ...


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