*2 LARSEN, McDERMOTT, NIX, C.J., Before HUTCH- ZAPPALA, JJ. INSON THE

OPINION OF COURT HUTCHINSON, Justice. owner, Pittsburgh property Holzapfel, (appellant),

A Jack Court, an order of appeals by allowance Commonwealth reversing Allegheny County Court of Common Pleas case. Common Pleas had affirmed the action of Zoning Board of Pittsburgh Adjustment denying Highland Community Park Club and others us), (appellees protesting the action of the City before Administrator. Administrator *3 occupancy dwelling appellant’s certificate of for six units in in property, which is located a residential district zoned for residences, family assumption one and two on the that the of time had passage improper nonconforming converted an reaching opposite use into one that was lawful. While conclusions, Commonwealth and Common Pleas both Court right” multiple considered the landowner’s “vested to this occupancy principal certificate the issue the case. The record does not a valid appellant attempted show obtain permit. premises safety regula- He used the violation of authorities notified him regulatory tions until and after of those violations. We hold he did not obtain a “vested right” nonconforming to his use and affirm Common- wealth Court. Appellant in this case as appear

The facts follows.1 that he Adjustment testified before the subject property Wellesley residential at 5814 purchased Highland Pittsburgh in the Park section of 1971. Avenue a Residence District at Two-Family The District been designated since 1923 when that of district was a type least supporting provided by parties 1. The documentation both in this case be described as minimal. can best 608 9 of district in accordance with Section Ordi-

“B” residence then only family 372 of 1923. Since one two nance No. dwellings among permitted by the uses family have been districts, identified as R2.2 Zoning Code such now the time he it the purchased testified that at Appellant dwelling units. On cross-examina- building contained seven R2 tion, property that he knew the was an he conceded grantor given No evidence was whether District. 27, 1955, 288, the Act of P.L. as complied with 11,1959,3 21 by May amended the Act of P.S. reenacted and seller to 611-615, requires deliver (Supp.1985), §§ settlement, use not later than at the the purchaser, legal use and permit showing property’s registration 611(b). any Nor is there P.S. zoning classification.4 § multi- that an occupancy in the record indication from the sought by appellant units was ever ple dwelling jur- official Building Inspection, with Superintendent to do so it, directed to issue until was isdiction The record does early in late 1975 or 1976.5 that office 13, for an January application appellant’s contain However, response from a June occupancy permit. shows that Building Inspection Superintendent until a second means would unit, stairway was for each the interior egress provided was No. changed “R2" in Ordinance designation from “B” to May effective Novem- 3. This Act was further reenacted and amended the Act of *4 23, 1976, 400, 28, 1973, 348, 121, No. No. amended June P.L. ber P.L. 89. 4. Section 3004 of the City Zoning imposes edition of the Code duty issuing the Administrator the of the certificates of required by classification the act. 1958, Building Superintendent be noted that in the of 5. It should Inspection only under was the Administrator of the Code 1958, 10, 1971, May By Ordinance No. 192 of 1958. separate charged provided for a administrator with Code being occupancy permits approving applications received for as city’s zoning compliance ordinance. with the enclosed, fire doors were installed at every floor level and a fire enclosure provided two-hour the furnance.6 Building for a Permit for the applied then Appellant that work inspection The record notes enclosure. furnace 25, 1976, 13, begun on June building not on the 28, 5, 1977, the August January inspector 1976. On 1976 or has 7 started[,] occupancy apts. not “Revoke[,] work wrote Record, Upon being 8. 2 in Basement.” Exhibit 6[,] not require an for seven units would approval that advised of and the Board Zoning Adjustment to established under Section of Appeals Standards 4, Code, Ordinance No. effective November Building Building Inspection the Bureau appellant wrote to of of stating he eliminate one would October upon termination of his the basement apartments later, August end of 1978. ten months at the tenant’s lease 2, 1977, Permit was issued Building a new On November room, original of the furnace complete the enclosure apparently having in June 1976 been Building Permit issued of Section 220 having expired operation revoked or 12, 1977, a 1947.7 On December Building Code of fire a escapes, as Permit the installation of Building tenants, was issued egress building for the second means Although stated that he was to a contractor.8 Permit Occupancy he had not received an advised that Administrator, Building Inspection letter from the Bureau of following "Penalty ordi- carries the notice across bottom. —The shall, conviction, upon provides violator nance thereof imprisonment subject for not more $500 to a fine of more than days. day permitted exist Each that a violation is consti- than 90 Record, separate offense.” Exhibit 19. tutes a “If, permit, provides: the construc- after issuance of 7. This Section or, (6) subsequent to been started within six months tion work has not (6) thereof, starting period for a six been discontinued the months, void, by the Board become unless extended said shall Appeals.” Standards enclosing Building construction Permit the record for is no There interior stairs. *5 because the original application lost, it would appear that the Bureau properly refused to issue such a permit in the absence of the safety measures required by the Building Code and that thereafter the earlier Building Permit was revoked expired by operation of law. 1979, appellant filled out a

Eventually July new application Occupancy. Zoning for a The Certificate Code Administrator this later for an Based, Occupancy presumably, Permit on 1979.9 installations, completion Superin- on the safety Building Inspections tendent of the Bureau of issued a on 1979.10 Occupancy Certificate October Learning of the issuance of this spring 1982, appellees filed an appeal with the Board of Zoning Adjustment, protesting action of the Administra- tor in approving multiple occupancies in an R2 district. A hearing before the Board of Adjustment was held on 10, 1982, June at which the testimony primarily addressed: the duration of multiple occupancy premises, on the appel- applications lant’s for occupancy building permits and appellant’s expenditures for the safety installations re- quired by Building Code. Board denied the appeal “Findings December 1982. Its of Fact” are mere summaries of testimony presented parties from Board without discussion concluded that property owner had a “vested right”:

The Board has considered carefully testimony all adduced at the instant case and is opinion that the subject protest appeal must be denied. The Board bases its list, single zoning compliance 9. The record contains a check dated 8, 1982, June in which the Office of the Administrator notes City Directory apts. entries in the Polk "6of for 1954 and w/names" Record, Exhibit 6. Building Inspection appears 10. The record of a 1976 to make some is, however, existing occupancy. reference to the duration of the It so illegible as to be uninformative. No reference to the classifica- tions can be discerned. *6 unrecover- right of expenditure decision on the vested subject property, of the by able funds the owner Administrator upholds Zoning the decision of hereby in this matter.

Zoning Adjustment, Zoning Board of Case No. of affirmed CommonPleas appeal, Allegheny County On own appellant in on its right” of “vested based finding met the five appellant from the record that finding v. Resources criteria of Environmental Department of (1975). 264, 344 A.2d 720 Ct. Flynn, Pa. Commonwealth on criteria, Court reversed the same Commonwealth Using Petrosky in Flynn This criteria appeal. adopted Court Township Upper Chi- Hearing Board Zoning v. (1979). such 501, With chester, 485 Pa. 402 A.2d 1385 courts, determine in must now results the lower we diverse in the evidence them is substantial supported which of abused Adjustment Board of and whether the record error law. We hold committed an its discretion or right” had a “vested conclusion that Board’s this on supported in case is occupancy permit to an this record. Pittsburgh Code leaves the initial deter- City Zoning is to the properly nonconforming

mination whether a use 1979, Administrator, 905.02(b), 15, Section Ordinance No. right with a to the action Adjustment, 909.04(a), Ordinance No. 1979. In Section case, this Administrator apparently occupancy issuance a certificate of 1979 on the as- sumption ap- it of a previously that was a continuation record, proved nothing use. There is this nonconforming however, he assump- to indicate that had confirmed such an pertinent previously tion records of review permissible A approved nonconforming uses. nonconform- or ing is defined the Code as: “A use of a structure use existing sign, land other than a on the effective lawfully subsequent date of ordinance amendment hereto, erected or altered for a use that does not completely regulations conform to the use in the applicable 903.02(h), district in which it is located.” Section Ordinance added). 1979 (emphasis prohibits any No. The Code changes conforming nonconforming from a use to a use and use specifically any subsequently voids discovered to be 905.03, dependent erroneously permit. an issued Section Thus, the Ordinance No. issuance this case of a certificate of for more occupancy than two families was violation use limitations the Code establishes for R2 Districts, approval by and its the Administrator was an rights” applies. error of law unless the doctrine of “vested *7 Appellant’s argument that he is entitled to retain his certificate of occupancy multiple for the in dwellings subject premises under the rights” doctrine of “vested fails following for the concept acquisition reasons. The in rights” “vested an unlawful use com nonconforming mencing after the date of effective the restrictions of the nonconforming ordinance which make it is a judicial designed provide construct to in zoning individual relief cases involving egregious statutory inequi or bureaucratic In part ties. it the equitable concept involves of detrimen tal reliance. As summarized in supra, and reit Flynn, erated in Petrosky, supra, there are five factors to be in weighed determining a permit whether holder has ac quired a right” permit, though “vested it even issued on the of mistake: basis

1) his due diligence attempting law; to comply with the 2) his good faith throughout the proceedings; 3) the expenditure by him of substantial unrecoverable funds;

4) the expiration appeal without of the period during which an could have been taken from the issuance of the permit;

613 prove to individu- of the evidence 5) insufficiency health, or welfare public safety rights or the property al permit. by the use of adversely affected would be 507, (quoting Flynn, 485 Pa. at A.2d at Petrosky, 725). at at 344 A.2d 21 Pa. Commonwealth Ct. that, demonstrates of the facts outlined above A review failed to Petrosky, appellant appellants Flynn unlike Knowing law. diligence comply with the due act with no two zoned for more than Ward was the Eleventh subject property, purchased he residences when family multiple for his legal a basis acquire no move to he made means set forth of the three dwelling through any family municipal ap- Code, applying obtain ie. for permit- a variance11 exception, proval special Bureau prodded by the nonconforming use. Once ted dollar paid the two appellant here Building Inspection, and an addi- occupancy fee a certificate construct one building permit to for a dollars tional five safety. his tenants’ required for features the several building permit let Record, Then he and 16. Exhibits In begin construction. failing to lapse January building for a again applied he year, of that November by mid-December furnace enclosure and for the *8 a to install contractor hired a he to have appears fire form of building in the for the system egress second for building permit any is no record escapes. There staircase, an additional shield the interior construction to Zoning Code as follows: These terms are defined in the 11. regulations “Special exception” a means modification permitted in to authorize Zoning the Board is Ordinance which instances, terms, Ordinance, specific under the listed in this prescribed herein. procedure and conditions provisions of this ordinance of the literal Variance: A modification grant permitted when strict enforcement Board is which the hardship owing provisions to circumstanc- would cause undue said is unique property on which the variance the individual es sought. 903.02, 15, No. Section Ordinance requirement in 4, the letter of June denying appel- lant’s occupancy permit. It was 1979 when appel- lant again applied for an occupancy permit, which was granted in December 1979. The granting permit of this and testimony before the Zoning of Adjustment Board per- mit us to infer that the furnace enclosure the fire escapes were eventually installed. No can evidence in the found record that work on shielding for the interior staircase begun was ever or completed. foregoing suggests recital only not “due dil- “good igence” but faith” was also lacking. Appellant’s counsel stated at the hearing Board approval Record, received for six unit occupancy, N.T. at yet the record contains no formal in documentation support of this statement. also Petitioner testified that he spent eight between and ten thousand dollars on the required features, Record, safety N.T. at only but the substantia- expenses tion of these is an estimate on the for building fourteen hundred as dollars the cost of Record, the furnace enclosure. Exhibit 8. appellant’s expenditures the exact amount of

Whatever be, they are not in may “unrecoverable” the same sense the Flynn, expended partially completed funds home supra, supra. completed and a In Petrosky, garage earlier appellants applied permits both of these cases completed the of their No they purchase properties. before faith” or official “good analogous repre- such “reliance” on pur- sentation has been here. Appellant’s demonstrated premises completed any regard chase of these without for the residence Code. He restrictions for an to do applied occupancy permit only when directed so, prohibits the Pittsburgh explicitly because Code are buildings the use of not with its compliance to retain provisions.12 Appellant’s actions were thus taken producing properties the use of revenue 981.01, 12. Section Ordinance No. *9 of the Bureau by employees the representations on

reliance Inspection. Building of invocation of the doc appellant’s accept cannot

We A to pre-condition this record. rights” on trine of “vested to with the attempt comply faith good is a its Zoning Code. Where total of requirements applicable the hardship, faith produce good compliance would physical address the author that the owner requires property special statutory procedure ity appropriate under the right his to a noncon or to establish exception, a variance ignored the For to have forming appellant use. to a argue response then that his years for five

Code for an apply directive to Building Inspection of Bureau his faith” is “good of was indicative occupancy permit inappropriate. appellees’ argued pro vigorously has

Appellant timely was not Zoning Adjustment of test to the Board of of the Rules Procedure argues He that Rule 401 filed. from decisions of appeals of Adjustment of Board bars Building Inspection of the Bureau Superintendent first days “after thirty taken more than of the Bureau Superintendent of the notice the decision Greenberg, v. citing Herdelin Building Inspection”, (1974) the effect A.2d 552 Ct. Pa.Commonwealth knowledge their appellees are bound because the point is not That case original attorney. day for a ten provided applicable there Zoning Board rules protestants attorney hired period, and intention permit holder had notified the Herdelin At least one of days. forty no action for but took appeal, on the record Board attested protestants before thirty more than aware that he did become appeal. The Board’s filing of the (30) days before and appropriate. correct appeal was both allowance *10 Since there is no substantial supporting evidence the first four factors required establish a “vested interest” the appellant, the matter of effects of adverse continued occupancy premises of these six no families needs ex- tended discussion. It is clear from the record that past put has the occupancy neighbors’ tenants’ and safety city’s at risk and that some of the safety require- ments still unfulfilled. may earlier, Code defines a Noncon-

As noted we ..., “a use of a or land forming lawfully Use as structure ..., ordinance existing on the effective date of this regulations applica- use completely conform the does added.) (Emphasis in which it is located.” in the district ble to one in this district has been limited occupancy Residential in the dwellings testimony since family or two lawful, conforming, one premises record shows the were It that the use of in the 1930’s. follows family use an unlaw- dwelling for six or seven units been premises The Ad- ful, inception. use from its impermissible therefore, is, an occupancy of such approval ministrator’s finding Adjustment’s error of law and supported by is not substan- right” of a “vested of Common- judgment in this record. tial evidence affirmed. Court is wealth

ZAPPALA, J., files a dissenting opinion in which LAR- SEN, J., joins. PAPADAKOS, JJ.,

FLAHERTY and did not participate the consideration or decision of this case.

ZAPPALA, Justice, dissenting. majority

I dissent. The holds that respectfully “[t]he appropri- correct and Board’s allowance was both ate,” protest that the Appellant’s argument rejecting of the was un- challenging occupancy permit the issuance that holding This rests on the terse observation timely. this Board attested one before protestants least of the “[a]t did not become aware record that he on the filing appeal.” (30) days before the than thirty more however, This of no record”, consists on the “attestation protestants, signed one than an affidavit more self-serving Goldhammer, containing vague, David that a Certificate first time I knew statement “[t]he in middle house was issued Occupancy been *11 Day Memorial week- before the May two weeks of —about protestant attorney Mr. Crawford end. [another the chatting and I were about protestants] group the discovered that a me he had and he told that neighborhood Holzapfel. Mr. had to been issued Occupancy Certificate him that I would upset told surprized I was [sic] —and —and this affidavit importantly, in an More join appeal.” like to the eighteen days not sworn to until after appeal.1 hearing on the Board Municipalities Planning

Section 10915 of the pro- Code vides: person

No shall allowed any proceeding to file with thirty any application board later than after days development, preliminary final, or approved by been appropriate municipal officer, an or if agency such body is proceeding designed to or secure reversal to limit the approval manner any person alleges unless such notice, that he no proves knowledge, had reason to that approval given. believe such had If such been person has to his succeeded interest after such approval, predecessor he shall be bound of his knowledge interest. 67a. dis- added). Record It is (emphasis

53 P.S. § proof turbing accept that would as sufficient majority jurat signed by although contains It is also noted that affidavit notary public, identifying does not Attorney as a it Crawford himself nor is expiration of his commission of the date contain statement impressed § seal. See 57 P.S. with a notarial it foregoing meet the burden under the statute protestants’ an after validity parte affidavit dubious submitted ex least, hearing. very Appellant any At the was denied opportunity challenge by way this “evidence” of cross-ex- disconcerting amination. This is especially light of the fact that only testimony hearing offered at the relevant (Mr. to the issue of timeliness indicated that the witness Crawford) knew of the issuance of the more than to the thirty days prior filing appeal. not, protestants

Because the did evidence properly record, meet their statutory proving they burden of notice, knowledge, “had no or reason to believe ... approval given,” I hold that the Board did been would not have to entertain the jurisdiction petition. See Town- Gaunt, Pa. ship Upper Moreland v. Commonwealth (1974). Ct. 328 A.2d 556 LARSEN, J., joins dissenting opinion.

506 A.2d 894 Joseph SCULLION, minor, By Through parents and and guardians, natural Scullion, Janet SCULLION and Robert Scullion,

and Janet Scullion and right, Robert in their own v. GYNOB, LTD., Corcoran, (Respondent) A.W. M.D. M.D., Riley,

Bernard J. v. HOSPITAL, ST. corporation, FRANCIS GENERAL Loftis, M.D., J.W. Petitioners. Supreme Pennsylvania. Court of

March