Opinion
Argued October 4, 1982
May 5, 1983.
Zoning — Scope of appellate review — Nonconforming use — Burden of proof.
1. In a zoning matter in which the common pleas court heard the matter de novo and took no additional evidence, review by the Commonwealth Court of Pennsylvania is limited to determining whether the common pleas court committed a legal error or abused its discretion. [165]
2. The burden of proving the existence of a nonconforming use rests on the property owner claiming its benefits. [165]
Judge WILLIAMS, JR. dissented.
Argued October 4, 1982, before President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and DOYLE, sitting as a panel of three.
Appeal, No. 552 C.D. 1981, from the Order of the Court of Common Pleas of Allegheny County in the case of Nathan S. Nassif and Joseph Nassif and Kountz Rider, Inc. v. Board of Adjustment of the City of Pittsburgh, No. SA 15 of 1978.
Application to the Board of Adjustment of the City of Pittsburgh for an occupancy permit. Application denied. Applicants appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. PAPADAKOS, J. City appealed to the Commonwealth Court of Pennsylvania. Appeal sustained. ( 64 Pa. Commw. 15. ) Applicants appealed to the Supreme Court of Pennsylvania. Case remanded to the Commonwealth Court of Pennsylvania. Held: Appeal denied and order affirmed.
D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellant.
Frank J. Lucchino, Grogan, Graffam, McGinley, Solomon Lucchino, for appellee.
The City of Pittsburgh appeals from an Allegheny County Common Pleas Court order directing the Pittsburgh Board of Adjustment (Board) to issue an occupancy permit. We affirm.
This case is on remand from the Pennsylvania Supreme Court. Originally, we reversed the common pleas court order. On appeal, however, the Supreme Court held that "the Commonwealth Court departed from the appropriate standard of review by independently assessing the credibility of the evidence adduced in the Court of Common Pleas." Nassif v. Board of Adjustment of the City of Pittsburgh, 498 Pa. 530, 448 A.2d 535 (1982) (per curiam). Consequently, the Supreme Court reversed our decision and remanded ostensibly "for a determination as to whether the Court of Common Pleas made an error in law or committed an abuse of discretion." Id. We are perplexed by this directive because our Court, per the able Opinion of Judge WILLIAMS, JR., reviewed the common pleas court decision under the appropriate standard, Nassif v. Board of Adjustment of the City of Pittsburgh, 64 Pa. Commw. 15, 20, 438 A.2d 1039, 1042 (1982), and did not assess the credibility of the evidence. However, we are constrained by the Supreme Court's mandate and we accept, as we must, the common pleas court's findings as conclusive.
The factual posture, detailed in Nassif v. Board of Adjustment of the City of Pittsburgh, 64 Pa. Commw. 15, 438 A.2d 1039 (1982), demonstrates that Kountz Rider, Inc. and Nathan S. and S. Joseph Nassif (Appellees) applied for an occupancy permit for commercial parking by reason of a prior nonconforming use. The common pleas court, after taking additional evidence and deciding the matter de novo, directed the Board to issue the permit. Our review is limited to determining whether that court committed a legal error or abused its discretion. Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commw. 397, 399-401, 412 A.2d 169, 170 (1980).
A "nonconforming use" is a "use . . . which does not comply with the applicable use provisions in a zoning ordinance . . . where such use was lawfully in existence prior to the enactment of such ordinance. . . ." Section 107 (13.1) of the Pennsylvania Municipalities Planning Code. "The burden of proving the existence of a nonconforming use rests on the property owner who would claim the benefit of the rights accorded property with that status." Overstreet at 402, 412 A.2d at 171-72. The common pleas court found (and, as directed by our Supreme Court, we must accept these findings as supported by the record) that the property was used for commercial parking prior to the enactment of Pittsburgh's original zoning ordinance in 1923 and that such use continued. We must also accept the common pleas court's finding that the non-conforming use was not abandoned. The appellees, having thus established the existence of a prior non-conforming use, are entitled to the requested occupancy permit.
Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10107 (13.1).
Affirmed.
ORDER
The Allegheny County Common Pleas Court order, No. SA 15 of 1978, dated March 11, 1981, is hereby affirmed.
Judge WILLIAMS, JR., dissents.