80 Pa. Commw. 496 | Pa. Commw. Ct. | 1984
Opinion by
Melvin and Freda Tuckfelt (Appellants) appeal here from an order of the Court of Common Pleas of Allegheny County affirming a denial by the Zoning Board of Adjustment of the City of Pittsburgh (Board) of their request for either a special exception or an occupancy permit to allow two roomers to lawfully occupy the third floor of a building Appellants own in Pittsburgh. "We affirm.
The building in question, which the Appellants purchased in 1964, is located in an area of Pittsburgh zoned R-1A and has two complete dwelling units on the first and second floors, and two rooms with sepa
After the purchase of their property, Appellants rented both the dwelling units and the third floor rooms in their building
Before this Court Appellants initially renew their contention that they are entitled to a deemed approval of their request for a special exception since five months elapsed between the date of the Board’s hearing on May 25, 1979, and October 26, 1979, when the Board’s decision was issued. We disagree.
Appellants recognize, of course, as they must, that the deemed approval provisions of Section 908 of the Pennsylvania Municipalities Planning Code (M.P.C.), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908, have no applicability here since Pittsburgh, being a city of the second class, is not governed by the provisions of the M.P.C. They note, however, that Section 7 of the Act of March 31, 1927, P.L. 98, as amended, 53 P.S. §25057, authorizing the creation of the Board, provides that Board decisions are to be rendered, following hearings, “within a reasonable time[,] ” and urge us to declare that decisions issued more than forty-five days after a Board hearing, the time period specified in Section 908 of the M.P.C., are per se unreasonable. We decline to do so.
Quite simply, if the General Assembly had intended to apply the deemed approval provisions of the M.P.C. to cities of the second class, it could have done so. Instead, it simply provided that decisions
Appellants next allege, citing inter alia Copeechan Fish and Game Club v. Zoning Hearing Board of North Whitehall Township, 32 Pa. Commonwealth Ct. 415, 378 A.2d 1303 (1977), that the objectors failed to establish to a high degree of probability that their proposed use would have a substantial adverse affect on-the community. We disagree.
Section 927.05-of the Code, a section of the Code pertaining to use exceptions in Bl-A districts, reads in pertinent part as follows:
The uses listed in this section are permitted under the provisions of Section 927.02 in conformity with the height and area provisions of Section 927.03 and 927.04 unless otherwise prescribed hereunder.
(b) Uses which are permitted only as special exceptions by the Board in conformity with the use provisions of Chapter 909.
(2) Extension of a nonconforming use within a nonconforming structure. . . . (Emphasis added.)
Section 909.06 of the Code, in turn, provides -in pertinent part as follows:
*501 (a) GENERALLY. Upon application, in accordance with, the provisions of this Zoning Ordinance and the rules of procedure of the Board, the Board shall determine the reasonableness and propriety in particular cases of any one of the following special exceptions to the district regulations of this Zoning Ordinance. The Board shall make its determination in conformity with the spirit of Section 901.06 and may authorize the issuance of an occupancy permit for the following in conformity with the provisions prescribed hereunder and all other applicable provisions of. this Zoning Ordinance, unless otherwise excepted hereunder. No special exceptions shall be approved if any of the following findings is made:
(1) That the establishment, maintenance, location and operation of the proposed use will be detrimental to or endanger the public health, safety, morals, comfort or general welfare;
(2) That the proposed use will be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes permitted, nor substantially diminish or impair property values within the neighborhood;
(5) That adequate measures have not been or will not be taken to provide ingress and egress designed so as to minimize traffic congestion in the public streets----
(b) Special Exception in Use.
(5) Extension of a nonconforming use within a nonconforming structure----
Here, the court of common pleas stated in its decision that
there was over-riding testimony by neighboring owners, residents, and taxpayers that increased occupancy of the subject property in this E-1A highest class residential district was detrimental to the public health, morals; safety and general welfare of the neighborhood stemming from increased traffic, no available parking, litter, loud noises and unseemly conduct.
This finding was amply supported by the testimony before the court of common pleas of three property owners residing near the subject property who indicated that the additional roomers added more noise to the neighborhood by playing their own stereo systems, created additional parking problems since there were no on site parking spaces available, added to the trash and litter found on the property, and inhibited their neighbor’s enjoyment of their surrounding prop
Appellants next raise a number of constitutional arguments in support of their contention that Section 903.02(f) of the Code, a section of the Code defining the term “family,” is unconstitutional. These arguments are apparently raised here since the Board indicated in its decision, in dicta, that Appellants may not be lawfully renting the two authorized single family residential units on their property since these units are occupied by more than .three unrelated students.
Finally, Appellants allege that they are entitled to a special exception since they have rented the two rooming units in question without being challenged by the City of Pittsburgh from the date of the purchase of their property in 1964. We disagree since it is “the settled law that mere delay in enforcement does not create a vested right to use property in violation of zoning regulations.” Lewis v. Lower Gwynedd Township Zoning Hearing Board, 24 Pa. Commonwealth Ct. 574, 576, 357 A.2d 725, 726 (1976); Dewald v. Board of Adjustment, City of Pittsburgh, 13 Pa. Commonwealth Ct. 303, 320 A.2d 922 (1974).
We shall accordingly affirm.
Order
Now, February 29, 1984, the order of the Court of Common Pleas of Allegheny County at No. SA 1274 of 1979, dated March 31, 1981, is affirmed.
The rental of the third floor rooms was, of course, unlawful.
The court was authorized to conduct a hearing de novo since a full and complete record of the proceedings before the Board had-not been made. See Section 754(a) of the Local Agency Law, 2 Pa. C. S. §754(a).
The term “Family” is defined in Section 903.02(f)(b) of the Code in the following manner:
“Family” means:
(b) A group of not more than three persons who need not be related by blood or marriage or adoption, living together as a single housekeeping unit in a dwelling unit, and sharing common facilities as considered reasonably appropriate for a family related by blood, marriage or adoption; in either case exclusive of usual servants.