Eitnier v. Kreitz Corp.
| Decision Date | 26 June 1961 |
| Citation | 172 A.2d 320,404 Pa. 406 |
| Parties | Blair S. EITNIER and Margaret B. Eitner, his wife; Joseph S. Kershner and Mildred M. Kershner, his wife; James R. Mellar and Madeline A. Mellar, his wife; John Melnyk and Josephine D. Melnyk, his wife; James J. Kauffman and Emma D. Kauffman, his wife, Appellants. v. KREITZ CORPORATION. |
| Court | Pennsylvania Supreme Court |
John S. Speicher, Terrence E. Connor, Reading, for appellants.
Paul D. Edelman, Paul H. Edelman, Forrest G Schaeffer, Jr., for appellee.
Edward G. Wink, Reading, for Board of Adjustment of City of Reading.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.
The Board of Adjustment of the City of Reading, Berks County, directed the issuance of a permit to Kreitz Corporation, the appellee, for construction of a facility to be used as a trucking terminal a nonconforming use, on land located in a zoned residential area. On appeal, the Court of Common Pleas heard further testimony, adopted the findings of the board and affirmed its action. The correctness of this order is now before us for consideration. The appellants are protestants, being owners of residential properties in the same area.
Kreitz Corporation is a Pennsylvania corporation authorized to engage in the business of selling, improving and leasing real estate. The particular land involved is an unimproved tract, 324 feet wide with a uniform depth of 162 feet. It was purchased on September 11, 1957, from Morris Kreitz and Sons, a partnership, who had acquired title in 1947. The zoning ordinance was adopted by the municipality on February 6, 1957, effective ten days later. The land is situated in a zoned RMF (residential multifamily) district, however, the immediate area is and has been for many years a combination of residential and commercial uses. The land on the opposite side of the street, while designated RMF, is used exclusively for terminal facilities by trucking firms. The application for the permit herein was originally filed in June of 1957, by Morris Kreitz and Sons, predecessor in title to Kreitz Corporation. On June 26, 1957, the permit was granted. Construction of the building was delayed and on April 24, 1958, the Kreitz Corporation filed a new application for a permit.
Kreitz Corporation is presently the owner of all of the land on the east side of the block facing on Tulpehocken Street. A portion of this tract immediately adjoining the land in issue is leased to Morris Kreitz and Sons, who have for many years been continuously engaged in the business of hauling heavy business machinery and similar equipment for which they enjoy certification of right from the Interstate Commerce Commission and the Pennsylvania Utility Commission. On the southeast corner of this portion of the land is constructed a cement block one-story building and addition (built in 1947) containing a total space of 8500 square feet. This building is used as a trucking terminal. The surrounding vacant land, including a portion of that involved, was used continuously for the parking of trucks and trailers. Machinery is brought to the site by other haulers and by trucks of Kreitz and Sons, unloaded, reloaded, and frequently stored temporarily while awaiting shipment to consignees. There is rigging equipment on the premises for handling and hoisting the heavy equipment. The addition to the building has three stalls into which trucks can be operated for loading and unloading purposes.
The specific land in dispute was leased to Bingaman Motor Express, a common carrier, in 1954, which continued in possession until sometime in 1955. A trailer, equipped with electric and phone service, was parked on the land for use as an office. A flat-bed truck was used as a loading and unloading platform. During the period of the lease, the land was used for the storage of trailer equipment, and as a terminal for the transfer of freight. Bingaman, during the normal course of operation, used approximately 15 to 18 pieces of equipment. Following discontinuance of use of the land by Bingaman in 1955, the Lancaster Transportation Company began use of the land which continued until May or June of 1958. It did not pay rent or enter into a lease. Lancaster is a common carrier with a terminal located on the opposite side of the street. The land, during this period, was used for the parking of tractor-trailers and 'straight jobs' and frequently for the unloading and reloading of long piping and similar freight that could not be handled on the dock of Lancaster's permanent terminal.
On May 26, 1958, Kreitz entered into a written lease for the land with Fowler-Williams, a common carrier, for use of the land as a trucking terminal. The lease provides for the construction of a garage and trucking terminal building thereon. A copy of the plans and specifications are attached to the lease. They indicate intended construction of a building covering an area of 3,578.75 square feet, standing at a height of 16 feet, with an 8-foot overhang of the roof over the loading docks on the east and west sides of the building. The permit applied for and involved herein concerns only zoning. A building permit for the construction of a particular type and size building has not yet been filed. However, the plans and specifications attached to the lease manifest what is intended.
It is the contention of Kreitz that the contemplated use of the land for which a permit has been granted constitutes in law a continuation of a pre-existing or nonconforming use which began before and continued subsequent to the passage of the zoning ordinance; that there is no essential difference in the use contemplated, except in degree.
While the scope of appellate review is broad in its nature, we are limited in the case of an extension of a nonconforming use to a determination of whether or not the evidence sustains the...
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