Hertsch Appeal

58 Pa. D. & C.2d 221, 1972 Pa. Dist. & Cnty. Dec. LEXIS 1
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedSeptember 8, 1972
Docketno. 72-737-07-6
StatusPublished

This text of 58 Pa. D. & C.2d 221 (Hertsch Appeal) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hertsch Appeal, 58 Pa. D. & C.2d 221, 1972 Pa. Dist. & Cnty. Dec. LEXIS 1 (Pa. Super. Ct. 1972).

Opinion

MOUNTENAY, J.,

This is an appeal from a decision of the Zoning Hearing Board of Telford Borough dealing with appellants’ application to change an existing nonconforming use to another nonconforming use. The zoning hearing board made 16 findings of fact, and the record of the board was supplemented at a hearing on appeal to this court. We view some of the board’s findings as unnecessary to the disposition of the matter, but all of the findings are supported by the entire record and are, therefore, affirmed. The court supplements the board’s findings of fact by one additional finding, as follows:

“The appellants did not abandon their non-conforming use; on the contrary, they went out of the greenhouse-florist business because of husband-appellant’s ill health.”

The record, as reflected in the findings of fact, establishes that appellants are the owners of a greenhouse-florist shop constituting a nonconforming use in a “B” residential district. On or about September 13, [223]*2231971, appellants closed their greenhouse business and prior to October 8, 1971, applied to the zoning officer for a permit to change the greenhouse-florist shop use to that of “7-11” retail food store. The zoning officer having refused this application, appellants appealed to the zoning hearing board. The appeal application filed with the board, while setting forth numerous facts in support of appellants’ contention that the permit should have been granted, characterizes itself neither as an application for a special exception nor as an application for a variance. The public notice of the hearing before the board, however, characterized the appeal as an application for variance.

The zoning ordinance, of course, permits neither greenhouses nor retail food stores in “B” residential districts. Both of these uses, however, are permitted in commercial districts.1 Section 600, pertaining to commercial uses, contains nine subsections listing various types of uses permitted in commercial districts as a matter of right. Subsection C thereof, pertaining to retail food stores, reads as follows:

“C. Retail establishment for the sale of dry goods, variety and general merchandise, clothing, food, drugs, furnishings, or other household supplies, sale and repair.of jewelry, watches, clocks, optical goods or musical, professional or scientific instruments;”

The permitted uses under section 600, subsection F, are merely “greenhouse; florist shop.”

While the right to change a nonconforming use is not affirmatively conferred in the ordinance, this right is granted by negative implication in section 1004 which reads as follows:

“Change of Use. A non-conforming building or use [224]*224shall be considered as such unless and until it complies with the regulations of the district in which it is located. Such use shall not be changed to a use designated for a district having less restrictive regulations.”

Section 1007 then purports to delegate certain functions to the zoning hearing board in the following language:

“Change or Resumption of Nonconforming Uses. The Board of Adjustment shall have discretion to determine what resumption or change of nonconforming use is of the same class of use and permissible.”

Another provision, section 1005, entitled “Discontinued Use,” should be noted in passing. This section reads:

“Discontinued Use. A non-conforming use, when discontinued, may be resumed any time within two (2) years from such discontinuance, but not thereafter. The resumption may be of the same class of use, but shall not be resumed as a non-conforming use of a lower class.”

We are of the opinion that section 1005 is intended to deal with the abandonment of nonconforming uses and simply means that after abandonment, a nonconforming use must be resumed within two years or not at all. The cases equating the term “discontinuance” to “abandonment” are legion,2 and in the present instance there was no evidence whatever of an intention on the part of the appellants to abandon their nonconforming use. On the contrary, appellants went out of the greenhouse business because of the husband-appellant’s ill health. Besides, section 1004 itself states that a nonconforming use shall be considered as such [225]*225until it complies with the regulations of the district in which it is located. This further tends to negate any argument that appellants’ nonconforming use was “discontinued.” Accordingly, we believe that section 1005 has no application to the present proceeding.

On the surface, the meaning of section 1004 seems clear, and were it not for the case of Darling v. Zoning Board of Adjustment of Philadelphia, 357 Pa. 428 (1947), we should have little difficulty in concluding that appellants were entitled to their requested change of use as a matter of right. However, the Darling case seemed to deny a change of use on the basis of language of the Philadelphia Zoning Code of 1933 almost identical to the language of the ordinance here before us.

In Darling, the premises in question had been used at the time of the enactment of the zoning ordinance as a real estate office. The area in question was zoned “B” residential, and the use thus became nonconforming. Subsequently, appellant sought to use the premises as a tailor shop, both the former use and the new proposed use being permitted in commercial districts.3 The court considered the language of two provisions of the Philadelphia Zoning Code. The first provision, dealing with changes in use, was identical to section 1004 of the Telford Borough Zoning Ordinance. To repeat, this provision is as follows:

“Change of Use. A non-conforming building or use shall be considered as such unless and until it complies with the regulations of the district in which it is located. Such use shall not be changed to a use designated for a district having less restrictive regulations.”

The other section of the Philadelphia Code which [226]*226the Darling opinion considered was that dealing with the discontinuance of nonconforming uses. This provision, similar but not identical to the comparable provision in the Telford Ordinance, reads as follows:

“(4) Discontinued Use. A nonconforming use when discontinued may be resumed as the same class of use but cannot be resumed as a nonconforming use of a lower class.”4

In construing these two sections together, the court stated that the drafters intended these provisions to mean the same thing as that much shorter provision considered in Haller Baking Company’s Appeal, 295 Pa. 257, 259, 260 (1928), which provided:

“. . . ‘The lawful use of land existing at the time of the adoption of this ordinance, although such use does not conform to the provisions hereof, may be continued, but, if such nonconforming use is discontinued, any future use of said land shall be in conformity with the provisions of this ordinance’ . . .”

But Haller dealt not with a proposed change in an existing nonconforming use but rather with an attempt to reinstate a nonconforming use previously abandoned.

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Related

Williams Appeal
102 A.2d 186 (Superior Court of Pennsylvania, 1954)
Jackson v. Pottstown Zoning Board of Adjustment
233 A.2d 252 (Supreme Court of Pennsylvania, 1967)
Haller Baking Company's Appeal
145 A. 77 (Supreme Court of Pennsylvania, 1928)
Darling v. Zoning Board of Adjustment
54 A.2d 829 (Supreme Court of Pennsylvania, 1947)
Mutimer Co. v. Wagner
103 A.2d 417 (Supreme Court of Pennsylvania, 1954)
Molnar v. George B. Henne & Co.
105 A.2d 325 (Supreme Court of Pennsylvania, 1954)
Luciany v. Zoning Board of Adjustment
159 A.2d 701 (Supreme Court of Pennsylvania, 1960)
Munhall Borough Council Appeal
104 A.2d 343 (Superior Court of Pennsylvania, 1954)

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Bluebook (online)
58 Pa. D. & C.2d 221, 1972 Pa. Dist. & Cnty. Dec. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hertsch-appeal-pactcomplbucks-1972.