Summary
reversing Cheltenham Township Zoning Board of Adjustment determination that concluded proposed use of property as a machinery sales office was too dissimilar to use as a real estate office to constitute a continuation of a permissible nonconforming use
Summary of this case from Montgomery Court Realty Co. v. Cheltenham Twp. Zoning Hearing Bd.Opinion
January 4, 1954.
March 22, 1954.
Municipalities — Zoning — Change from commercial to residential use — Non-conforming use — Change of non-conforming use to another use of same class.
1. Where it appeared that prior to 1947 a property was used as the principal office for the sale of real estate and that such use was a conforming use under a zoning ordinance as it then existed, which classified the area as a commercial district in which permitted uses included "office"; and it further appeared that in 1947 the area was changed from a commercial district to a residence district, in which offices were prohibited, and thereafter the owner of the property sought to change the then non-conforming use of the land from a sales office for real estate to a sales office for machinery, it was Held that the proposed new non-conforming use fell within the same sub-division of the use class previously permitted and was permissible as a continuing non-conforming use. [576-82]
2. The spirit of the zoning law is not to inflict any greater loss or hardship on an owner than is necessary to accomplish the purpose of zoning. [582]
Argued January 4, 1954. Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.
Appeal, No. 10, Jan. T., 1954, from decree of Court of Common Pleas of Montgomery County, June T., 1952, No. 3, in case of Mutimer Company v. Earle Wagner et al., Members of Zoning Board of Adjustment of Cheltenham Township et al. Decree affirmed.
Appeal by property owner from decision of zoning board of adjustment refusing application for use permit.
The facts are stated in the opinion, by KNIGHT, P.J., of the court below, as follows:
The Mutimer Company, appellant, requested the Board of Adjustment's permission to use a three room and basement building, No. 8000 York Road, Elkins Park, as a sales office. The Board refused permission and this appeal followed. A hearing was held in this Court at which evidence was adduced by appellant and appellees.
We have examined the findings of fact as found by the Board. They are fully supported by the evidence and we adopt them as our own with the following modifications.
The tenth finding of fact states: "10. That the use proposed by the petitioner is of a different type of use than existed at the time the property was zoned from commercial to residential use. The petitioner proposes to use the property to conduct therein a commercial enterprise, whereas up to the present time the property has been used primarily as the principal office for the sale of real estate located in the development located adjacent thereto. There has been no general commercial use of the property heretofore and since the ground has been developed the original purpose of the building no longer exists."
While it is true that the building in question has been used from the beginning as a sales office in connection with the development of Widener Hills, the evidence shows that for the last six years it has been used by the present owner not only in connection with the development but also as a general real estate and insurance office and was so used before the Zoning was changed in 1947 from Commercial "F" to Residence "A". A general real estate and insurance business is a commercial enterprise.
While it is true that machines would be sold instead of houses and lots it is also true that in both cases the building was and would be used for office purposes.
Section 1410 of the Cheltenham Zoning Ordinance provides in part as follows: "Change or resumption of non-conforming use: The Board of Adjustment shall have discretion to determine what resumption or change of non-conforming use is of the same class of use and permissible."
The Board of Adjustment having been vested with the power to determine whether the use proposed by the appellant is of the same class as the present non-conforming use the decision of the Board may not be set aside, except for a manifest and flagrant abuse of discretion. The Board seems to base its decision on the contention that the use of the building in question was merely incidental or accessory to the development of the large tract known as Widener Hills and as that tract is now nearly completely developed the need for the building no longer exists and that it should be eliminated.
The Board has cited no authority in its discussion of the facts and we have been able to find but one case in which the facts even remotely resemble those in the present case. In Yocom et al's. Appeal, 142 Pa. Super. 165 (1940) there was a large rooming house in a residential district. The operator of the rooming house rented spaces in the yard for parking the cars of her roomers. She expanded the use to accommodate the roomers in an adjoining house and on rare occasions members of the general public. The rooming house was torn down and the owner of the lot desired to use it as a public parking lot. The Superior Court said: "The real question for determination is whether this use is substantially the same as that obtaining on these premises previous to [the time] the zoning ordinance became effective." The Court held that the renting of parking space was incidental to the operation of the rooming house and that a public parking lot was a substantially different use and refused to permit it.
Even as an incidental use in the present case the activities carried on in the building were much the same type as those carried on in a general real estate and insurance office. Before 1947 the use of the building was a conforming use for it was in a commercial district where business offices were permitted.
In 1947 the Zoning classification was changed from "F" commercial to "A" residential and the use of the building became a "non-conforming use". The evidence discloses that for a short time before 1947 and since that day the building has been used at least in part to house a general real estate and insurance business.
Applying the test set forth in the Yocom case, supra, we are of the opinion that the proposed use of the building is substantially the same as that obtaining before the passage of the Cheltenham Zoning Ordinance of 1929 and the amendment of 1947; namely, as an office where the usual activities of an office are carried on. The distinction between real estate and machinery is not a very realistic one so far as the office is concerned.
Of course, if it were shown that the public health, morals, or safety were adversely affected by the proposed use of the office, the Board could and should refuse a certificate of use, but that is not this case, for the proposed use of the building will not be anymore objectionable than its present use, in fact, one of the protestants testified it would be less objectionable.
The protestants fear, however, that if this change of occupancy is allowed, it will lead to further infiltration of business into their fine and high class residential district. This is the familiar "opening wedge" argument. In some situations it is a meritorious argument but we do not think it has any appreciable force in this situation. The doctrine of this case applies only to a non-conforming use and in this class "A" residence district there are no other non-conforming uses in the immediate or more remote neighborhood. Any future application for a change of use by way of a special exception or variance must come before the Board of Adjustment and we fail to see how any change of use as here requested could be given any weight as a precedent or "opening wedge."
In the textbook, "Zoning Law and Practice" by Yokley, at page 265, we find this: "a non-conforming use is not deemed changed if the use falls within the same sub-division of the use class . . . a transfer from one to another within the sub-division does not constitute a change within the language used."
The Cheltenham Zoning Ordinance, Article VIII, "F" Commercial and Business, Section 801 under uses permitted enumerates "store, office, studio, . . . telegraph office and place of amusement."
By amendment passed in 1945, a new commercial and business district was created, article VII A, paragraph 1 of section 701 A enumerates among the permitted uses the same activities as are enumerated in section 801 supra. It will be noted that no distinction is made as to the different kind of offices except telegraph offices. Irrespective of the kind of business carried on, they are all classed as offices.
Applying the reasoning as above set forth in the quotation from "Zoning Law and Practice" the present use and the proposed use of the building are in the same use class and therefore the use is not deemed to be changed. The township commissioners in enacting the Cheltenham Township Zoning Ordinance made no distinction as to the use of an office except professional and utility offices and we are of the opinion that under the circumstances here presented the Board of Adjustment should not have made any distinction as to office use.
In Smith v. Westpfahl, Director, 52 Pa. D. C. 51 (1944) the Court of Lackawanna County applied the above reasoning but cited no authority. In that case there was a large building in a residential district existing as a non-conforming use. The owner discontinued the use and rented one floor of the building for the manufacture of aprons and the other floor for the manufacture of wooden high chairs. The ordinance permitted a change of non-conforming use to a use in a similar class. In the light industry zone as established by the ordinance the apron manufacture would have been permitted but woodworking establishments were excluded. The Court allowed the aprons but said "no" to the high chairs. See also Steudel et al. v. Troberg et al., 63 N.E.2d 241.
Let us look at the other side of the picture. Under the common law an owner could use his land in any way he desired so long as he did not interfere with the rights of his neighbor to the use of his property. Zoning invaded this common law and natural incident of ownership but has been upheld on the theory that it accomplishes the greatest good for the greatest number, and the individual must submit to a loss in order that the many may profit and the public hearing morals, safety and welfare enhanced. When, however, the decision of a Board of Adjustment so restricts the use of property that it almost amounts to confiscation then the courts should carefully examine the decision to see if the result is justified. The Board has found that the use of the building as incidental to the development of Widener Hills is no longer needed. The owner then, under the decision of the Board, must either convert it to residential use, an expensive job even if practicable, or tear it down, or at most use it for a real estate office. The building is not a temporary shack but an attractive structure containing three rooms and a basement. The cost of replacement is not shown but in today's market would be several thousands of dollars.
In the brief filed by counsel for the intervenors it is contended that it cannot be urged that the Board is restricted to finding whether the proposed use and the existing use fall into the same Zoning Classification. With this we agree. The fact that offices, stores and garages are all permitted in an F. Commercial district under the Cheltenham Zoning Ordinance would not require the Board to approve the conversion of the building in question into a store or garage, but we are of the opinion that the use of the building as an office is substantially the same use as now exists. In other words, the present use and proposed use fall within the same sub-division of permitted uses in an F Commercial Zone.
In construing Section 1410 — "change or resumption of non-conforming use" we construe the words "change of non-conforming use is of the same class of use and permissible" to mean that if the Board found the proposed use to be in the same use class as the existing use it was permissible. The intervenors contend that the above quoted words mean that the proposed use must be not only in the same use class as the existing use but must also be permissible. This would give unlimited and unbridled power to the Board of Adjustment without any standards to guide its exercise of discretion. It is a legislative function to say what uses are permitted in a district.
The intervenors rely heavily on Yocom et al's. Appeal, supra. We think that case can be distinguished on its facts from the present case. There is a vast difference between allowing the parking of cars in the yard of a boarding house and the operation of a public parking lot. The Superior Court held that while the general use was the same, namely, parking space for automobiles, the difference in degree of use amounted to a new kind of use. In the present case the difference in the degree of use for office purposes will be slight, if indeed there will be any difference.
We are of the opinion that the decision of the Board in this case is not only unreasonable but that it violates the spirit of the zoning law which is not to inflict any greater loss or hardship on an owner than is necessary to accomplish the purpose of zoning. When the decision of a Board of Adjustment is based on no more substantial reasons than the decision in this case, it should be set aside as an abuse of discretion.
Protestants appealed.
David V. Shapiro, with him David E. Groshens and Shapiro, Rosenfeld Stalberg, for appellants.
Cassin W. Craig, with him Wisler, Pearlstine, Talone Gerber, for appellee.
The decree is affirmed on the opinion of President Judge KNIGHT. Costs to be paid by the appellants.