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HomeMy WebLinkAbout98-0676 civilTERRY T. RICKERT, APPELLANT V. SOUTH MIDDLETON TOWNSHIP ZONING HEARING BOARD, APPELLEE V. WILLIAM R. RONAN and GERALDINE R. RONAN, INTERVENORS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA · 98-0676 CIVIL TERM IN RE: APPEAL FROM A DECISION OF THE ZONING HEARING BOARD OF SOUTH MIDDLETON TOWNSHIP BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT BAYLEY, J., January, 1999:-- William R. Ronan and Geraldine R. Ronan, intervenors, own 729 Petersburg Road, South Middleton Township. The property is located in an Agricultural Zoning District under a South Middleton Township Zoning Ordinance enacted in 1970. A use permitted in that district as of right is a single-family detached dwelling. The ordinance allows one accessory apartment within an owner occupied single-family dwelling subject to conditional use approval by the Township Board of Supervisors. In 1996, the Ronans, who are the current owners, rented apartments on the first floor, second floor and in the basement of 729 Petersburg Road. They do not live in the dwelling. The South Middleton Township Zoning Officer issued a notice to the Ronans on July 21, 1997, that the three rental units in 729 Petersburg Road violate the South 98-0676 CIVIL TERM Middleton Township Zoning Ordinance. The Ronans appealed, and a hearing was conducted before the South Middleton Township Zoning Hearing Board. The Board issued the following decision: It is the decision of the South Middleton Township Zoning Hearing Board that the appeal of William R. Ronan and Geraldine L. Ronan from the July 21, 1997 enforcement notice issued by South Middleton Township is sustained in part and denied in part. The appeal is sustained in the sense that it is determined that there was no abandonment of a non-conforming use at property at 729 Petersburg Road, Carlisle, PA, which use consisted of a multi-family dwelling unit at the subject property encompassing two (2) separate dwelling units, The appeal is denied in the sense that it advanced a suggestion that there existed three (3) separate dwelling units at the subject property which had all obtained non-conforming use status. It is determined that two (2) dwelling units at the subject property may continue as a legal non-conforming use, with these units being the first floor dwelling unit and the second floor dwelling unit. The basement area of the subject property has no legal status to be used as a separate dwelling unit. (Footnote omitted.) (Emphasis added.) Terry T. Rickert, who lives across the street from 729 Petersburg Road, appealed from the decision of the Zoning Hearing Board. The issues were briefed and argued on December 12, 1998, without taking additional testimony.~ Our scope of review is limited to determining if the South Middleton Township Zoning Hearing Board committed an error of law, and whether its findings of fact are supported by substantial evidence. Nascone v. Ross Township Zoning Hearing Board, 81 Pa. Commw. 482 (1984). The Board is the judge of the credibility of the witnesses and the weight to be given to their testimony. Roseberry Life Insurance Company v. 1. The Zoning Hearing Board did not enter an appearance. -2- 98-0676 CIVIL TERM Zoning Hearing Board of City of McKeesport, 664 A.2d 688 (Pa. Commw. 1995). The Zoning Hearing Board found that Arnold Hagen and his wife purchased 729 Petersburg Road and started living in the dwelling on the property in the early 1950's. The Hagens created a second floor apartment in the dwelling which they began renting in 1958. They continued to live in the first floor. After Mr. Hagen died in 1962, Mrs. Hagen continued to reside in the first floor. She died in September, 1994. William and Geraldine Ronan are the executors and beneficiaries of her estate and they received title to the property in October, 1995. The Zoning Hearing Board found that the Hagens established a second floor apartment in their dwelling prior to the enactment of the 1970 zoning ordinance. That finding is supported by substantial evidence upon which the Board was the judge of the credibility of the witnesses. The Board concluded that the use of the dwelling as a two family multi-family unit is a nonconforming use. Appellant does not maintain that the Board erred in finding that the second floor apartment is a nonconforming use; rather, he maintains that because Mr. & Mrs. Hagen, and later Mrs. Hagen, continued to live in the property after that use was established, the nonconforming use is limited to an accessory apartment in an owner occupied dwelling. Appellant argues that the Board erred because in enacting the 1970 zoning ordinance it "has already determined legislatively that an owner-occupied dwelling with one accessory apartment is different than a non-owner occupied, two apartment dwelling." Therefore, appellant concludes that the non-owner occupied -3- 98-0676 CIVIL TERM dwelling cannot now be used as an apartment? To qualify as a continuation of an existing nonconforming use, a proposed use must be sufficiently similar to the nonconforming use as not to constitute a new or different use. Hanna v. Board of Adjustment, 408 Pa. 306 (1962). The proposed use need not, however, be identical to the existing use; rather, similarity in use is all that is required. Pappas v. Zoning Board of Adjustment, 527 Pa. 149 (1991). In Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340 (1993), the Supreme Court of Pennsylvania stated: Clearly, the nature of a non conforming use must be determined from the actual use from which the property is being put rather than from the identity of the users. (Emphasis added.) In the case sub iudice, there were no restrictions on the use of a dwelling in South Middleton Township for multi-family living prior to the enactment of the zoning ordinance in 1970. The Zoning Hearing Board found that before the zoning ordinance was enacted, 729 Petersburg Road was being used by two families. The fact that the Hagens, who were one of those families, were the owners of the property is of no legal import because it is the actual use to which the property was being put prior to the enactment of the zoning ordinance rather than the identity of the users that determines the nature of the nonconforming use. Umley v. Zoning Hearing 2. The Ronans did not appeal from the decision of the Board that the use of the basement as a separate apartment was not established before the enactment of the 1970 zoning ordinance and, therefore, does not constitute a valid nonconforming use. -4- 98-0676 CIVIL TERM Board, supra. The fact that the 1970 zoning ordinance only allows an apartment as an accessory use with conditional use approval in a dwelling in an agricultural zone is also of no legal import because the property was being used as a two-family dwelling prior to the enactment of the zoning ordinance. Even if, contrary to the law set forth in Limley, a two family use of the dwelling is not the same use as existed prior to the enactment of the zoning ordinance because at that time one of the families was the owner, the use for two non-owner families is a natural expansion of the nonconforming use. In Limley, appellant opened a public restaurant and bar in a building that had previously housed a non- profit private club. The previous use as a private club was nonconforming in a residentially zoned district. A zoning hearing board held that the use of the premises as a public restaurant and bar was a new use and not a continuation of the existing nonconforming use. A Court of Common Pleas and the Commonwealth Court affirmed the zoning hearing board, but the Supreme Court of Pennsylvania reversed, finding that the current use was "[s]imilar to, and a natural expansion of, the food and beverage facility that constituted the existing nonconforming use." The Court stated that "[L]abeling the users as members and quests of a private club or as members of the general public is not determinative of the actual use of the premises." The same reasoning applies to a two-family use of 729 Petersburg Road, and is consistent with the direction of the Supreme Court of Pennsylvania in Township of Chartiers v. W.H. Martin, Inc., 518 Pa. 181 (1988), that "[o]nce it has been determined that a -5- 98-0676 CIVIL TERM nonconforming use is in existence, and overly technical assessment of that use cannot be utilized to stunt its natural development and growth." Appellant maintains, alternatively, that intervenors' nonconforming use as established by the South Middleton Zoning Hearing Board has been abandoned. For a lawful nonconforming use to be abandoned there must be an intent to abandon and actual abandonment reflected by overt acts or the failure to act indicating abandonment. Action Audio Service Inc. v. Upper Darby Township Zoning Hearing Board, 699 A.2d 1375 (Pa. Commw. 1997). In Action Audio, the Commonwealth Court stated that even where a zoning ordinance sets a time limit on abandonment '~he expiration of that period creates a presumption of intent to abandon the nonconforming use; however, the party asserting abandonment must still demonstrate concurrent overt acts or failure to act which show abandonment." In the case sub judice, the South Middleton Township Zoning Hearing Board concluded: The record is void of any evidence suggesting that there were overt acts or failures to act by Mrs. Hagen or by the Ronans that would demonstrate an abandonment of any apartment use at the subject property. Even assuming the subject property may have laid vacant for more than twelve (12) months, the lack of any settled purpose by the landowners to abandon the multiple family use at the subject property is clear from the record. This conclusion is supported by substantial evidence upon which the Board was the judge of the credibility of the witnesses. For the foregoing reasons, the following order is entered. -6- 98-0676 CIVIL TERM AND NOW, this __ Hearing Board of South Middleton Township, IS AFFIRMED. Ronald M. Lucas, Esquire For Appellant ORDER OF COURT day of January, 1999, the decision of the Zoning By the Court, Edgar B. Bayley, J. ( Edward L. Schorpp, Esquire For Intervenors, :saa -7-