49 Pa. Commw. 6 | Pa. Commw. Ct. | 1980
Opinion by
The City of Pittsburgh has appealed from an order of the Court of Common Pleas of Allegheny County adopting the recommendation of a court appointed referee that the City be required to issue an occupancy permit to the Zambrano Corporation (Zambrano) allowing it to operate a beauty salon in its building located in an A-l Residential district, where commercial uses are permitted only by special exception.
Zambrano is the owner of a two and one-half story structure which it built in 1968 and leased to a retail shoe business for about ten years. During that time the first floor of the building was used as a shoe store and the remainder of the building was used for offices and storage. On October 24, 1978, Zambrano applied to the Pittsburgh Zoning Board of Adjustment for a special exception and occupancy permit allowing it to
At the Board hearing, Zambrano asked that its application for apartment use receive separate consideration and its spokesman testified that by leases not produced in evidence Zambrano had provided two parking stalls at another location for the tenants of the apartments. Even had the Board accepted this suggestion, the proposal was still lacking six parking stalls. As noted, the Board denied the application. The court appointed referee, without taking additional evidence, concluded that the proposed use would not adversely affect the health, safety, morals or general welfare and recommended that the permit be granted. The court below accepted the referee’s recommendation and ordered the permit to issue. We reverse.
The issue of whether a proposed use adversely affects a community’s health, safety or welfare does not need to be addressed until the applicant for a special exception has carried his burden of proving that the use he proposes is one allowed by special exception and that he will comply with all requirements of the zoning ordinance relative to the use intended. Jones v. Zoning Hearing Board, 7 Pa. Commonwealth Ct. 284, 298 A.2d 664 (1972).
Order reversed.
Order
And Now, this 24th day of January, 1980, the order of the Court of Common Pleas of Allegheny County, dated January 22,1979, is hereby reversed and the decision of the Zoning Board of Adjustment is reinstated.