Opinion
Argued March 24, 1987.
July 1, 1987.
Zoning — Variance — Scope of appellate review — Abuse of Discretion — Error of law — Findings of fact — Substantial evidence — Nonconforming use.
1. In a zoning case where the lower court took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board committed an error of law or abused its discretion by making findings of fact which were unsupported by substantial evidence. [205]
2. A party whose zoning request is based on an assertion of the existence of a prior nonconforming use cannot prevail when the use which predated the present zoning ordinance was also unlawful under the ordinance in effect when the nonconforming use was presumably begun. [205-6]
3. Regardless of the meritorious nature of a use of property, it does not qualify as a valid nonconforming use in the absence of evidence of its lawfulness prior to the enactment of the present zoning regulations. [207]
Argued March 24, 1987, before President Judge CRUMLISH, JR., Judge PALLADINO, and Senior Judge NARICK, sitting as a panel of three.
Appeal, No. 3420 C.D. 1985, from the Order of the Court of Common Pleas of Allegheny County in case of Joseph Moros and Mary Moros, his wife v. City of Pittsburgh, Zoning Board of Adjustment, No. SA 756 of 1984.
Property owners filed request for variance with Pittsburgh Zoning Board of Adjustment. Variance denied. Owners appealed to the Court of Common Pleas of Allegheny County. Decision affirmed. FINKELHOR, J. Owners appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Henry Miller, III, for appellants.
Kellen McClendon, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for appellee.
Joseph and Mary Moros were denied a variance for non-conforming use for two properties by the Pittsburgh Zoning Board of Adjustment. The Moroses sought a fifteen-unit occupancy permit for the combined properties. The Allegheny County Common Pleas Court affirmed. We affirm.
Mary Moros bought 2128 Carey Way in 1947 and the second property, 2130 Carey Way, in 1973. The properties are presently classified R-4 multi-family residential. Each unit contains a sleeping room, a hotplate and refrigerator. One bathroom serves every two units. They are occupied primarily by state hospital patients under the Allegheny County Mental Health and Rehabilitation Program.
Where the trial court, in reviewing a zoning appeal, has taken no evidence in addition to that which was presented to the zoning hearing board, the Pennsylvania Supreme Court instructs:
[T]he scope of our review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. . . . We may conclude that the Board abused its discretion only if its findings are not supported by substantial evidence. . . . By 'substantial evidence' we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554-55, 462 A.2d 637, 639-40 (1983) (citations omitted).
The record reveals that from 1923 to 1958 the properties were zoned light industrial, which required a 400 square feet lot area.
At issue is whether the Moroses presented substantial evidence to show that the properties were occupied as multi-unit dwellings prior to 1958.
On appeal, the theory of variance by estoppel was also raised, citing this Court's previous holding in Knake v. Zoning Hearing Board of Dormont, 74 Pa. Commw. 265, 459 A.2d 1331 (1983). Mindful of the five factors which collectively demonstrate the need for this type of variance, we are unpersuaded that the factor of municipal inaction has been established.
The common pleas court found that neither property owned by the Moroses met the 400 square feet of lot area per unit as required by the 1923 zoning ordinance. No evidence was presented by the petitioners which would establish the zoning status of the properties prior to 1923. It held therefore that, even if the properties were used as a boarding house prior to 1958, the use would have been illegal at that time due to the lot size requirement. Therefore, the Moroses could not qualify for a legal non-conforming use.
As long as legality of a non-conforming use status remains the controlling issue, a common pleas court can affirm on a theory not previously addressed by the Board. Municipality of Penn Hills v. Zoning Hearing Board, 60 Pa. Commw. 286, 431 A.2d 383 (1981).
The law in this area is well established:
'The burden of proving the extent or existence of a nonconforming use rests on the property owner who would claim the benefit of the rights accorded property with that status.' . . . 'The benefit of legal nonconforming use status is available only to that lawful use which existed on the land at the time when the prohibitory zoning (to which the use does not conform) took effect.' . . . Thus applicant's burden in this case was to demonstrate that his commercial use was in existence and was lawful before the enactment of the 1963 ordinance.
Id. at 288; 431 A.2d at 384 (emphasis in original; citations omitted.) The 1923 ordinance required a minimum of 400 square feet per lot. It is undisputed that the properties fell below that standard.
The Moroses, as proponents of that non-conforming use, introduced no evidence that the property even existed prior to the restrictive 1923 ordinance. It was their burden to do so. Their failure to address the relation of the 1923 zoning ordinance to the property in question and its legal effect, if any, is fatal. The 1923 ordinance being necessarily relevant to the non-conforming use before it, the lower court was entitled to take judicial notice of it as provided in 42 Pa. C. S. § 6107. We hold that the reasoning of the common pleas court and its conclusion that the properties were illegal because of the 1923 zoning ordinance is sound.
Undoubtedly, the Moroses have provided a needed service which is terminated by the Board's decision. However, as the common pleas court wisely noted, it is undisputed that the Moroses provide a decent, safe and sanitary housing to low income individuals who might be unable to afford any non-public housing. However, without evidence establishing the legal standing of these properties, we are constrained to affirm the order of the common pleas court.
ORDER
The order of the Allegheny County Common Pleas Court, No. SA 756 dated November 13, 1985, is affirmed.