74 Pa. Commw. 265 | Pa. Commw. Ct. | 1983
Opinion by
The Borough of Dormont (Borough) has appealed from an order of the Court of Common Pleas of Allegheny County which reversed a decision of the Borough’s Zoning Hearing Board (Board) and ordered that a five-unit occupancy permit be issued to Walter P. Knake (Appellee) for a building he owns in the Borough. We affirm.
The record and facts as found by the court of common pleas
The sole issue raised in this appeal is whether Appellee is entitled to continue to use his property in violation of the Borough’s zoning ordinance under a theory of variance by estoppel. The Board found that Appellee was entitled to continue to use four of the five units due to the Borough’s acquiescence in multi-family use over a long period of time. On appeal and after a further hearing before a court-appointed referee, the court of common pleas determined that Appellee was entitled to the requested five-unit occupancy permit, again due in large part to municipal inaction with regard to the known violation. „ The instant appeal followed.
The case law regarding the theory of variance by estoppel, or vested rights as it is frequently termed, has not produced a clearly defined test for determining when it has become inequitable to enforce a particular zoning restriction against a landowner. In the case of Sheedy v. Zoning Board of Adjustment, 409 Pa. 655, 187 A.2d 907 (1963) our Supreme Court found that at least five factors converged to require the grant of a variance for a five-unit dwelling located in a single family zoning district. The five factors were that: 1) the present owners purchased the property believing in good faith that the multi-family use was lawful; 2) enormous expenditures would be required to reconvert the structure to a conforming use; 3) the municipality failed for twenty-three years to enforce the zoning restrictions; 4) the municipality was aware of the existence of the illegal use and 5) the multi-family use would present no threat to the public health, safety or welfare.
In a slightly different vein, the Supreme Court in Heidorn Appeal, 412 Pa. 570, 195 A.2d 349 (1963) ap
We lastly note the general principle that for an estoppel to occur there must be an innocent reliance by the party seeking the estoppel upon the representations or conduct of the adverse party. Schaefer v Zoning Board of Adjustment, City of Pittsburgh, 62 Pa. Commonwealth Ct. 104, 435 A.2d 289 (1981); Glazer v. Zoning Hearing Board of Worcester Township, 55 Pa. Commonwealth Ct. 234, 423 A.2d 463 (1980).
Applying this case law to the instant facts, we conclude that the Appellee is entitled to continue his five-unit occupancy despite the violation of existing zoning restrictions. First, the lower court found, and we agree, that when Appellee purchased the subject property in 1937 he believed in good faith that the existing multi-family usage was lawful. In view of
We conclude that the facts discussed above, in combination, require that the Borough be estopped from denying Appellee a five-unit occupancy permit. We, accordingly, will affirm the order of the court of common pleas.
Order,
The order of the Court of Common Pleas of Allegheny County, dated March 9, 1982, is hereby affirmed.
The court of common pleas in this case took additional evidence and was, accordingly, empowered to make its own findings of fact. Section 1010 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, PA. 805, as amended,, added by Section 19 of the Act of June 1, 1972, PA. 333, 53 P.S. §11010. Our scope of review, where the court of common pleas has-taken additional evidence is to determine whether the court committed an abuse of discretion or error of law. Girolano Appeal, 49 Pa. Commonwealth Ct. 159, 410 A.2d 940 (1980).
Several otter building permits have been issued to Appellee since 1937 for various improvements to tbe subject structure; however, we agree with the trial court that they do not themselves demonstrate Borough knowledge of the illegal use.
The zoning officer apparently believed that the structure constituted a valid nonconforming use. The record indicates, however, that the Borough’s first zoning ordinance was enacted in 1927 and that the change to multi-family use occurred two years later in 1929, thus preventing legal nonconforming use status for the structure.