Opinion
Argued April 22, 1954.
June 1, 1954.
Municipalities — Zoning — Nonconforming use — Garage — Change — Manufacture of hardware.
In a suit in equity, in which it appeared that defendant's premises had been used by its predecessors as a garage, which was an "A commercial use" and a nonconforming use in the residential district in which the premises were situated; and that defendant's operations, in the manufacture of hardware, constituted an "industrial" area use; it was Held that defendant's use did not qualify as a permissible nonconforming use and that its operations were in violation of law.
Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 173, Jan. T., 1953, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1951, No. 396, transferred to Court of Common Pleas No. 3, March T., 1951, No. 1151, in case of Ignatz Molnar et ux. and City of Philadelphia v. George B. Henne Co., Inc. Decree affirmed.
Complaint in equity.
The facts are stated in the opinion, by MAWHINNEY, J., of the court below, as follows:
The plaintiffs filed their bill in equity setting forth that the defendant conducts a machine shop and manufactures hardware at the premises 5248-5250 North 2nd Street; that the operation of defendant's machinery caused certain damage to plaintiffs' home and contents and that the conduct of defendant's business created such noise, vibration and fumes as to interfere with the rest and sleep of the plaintiffs and to interfere with the enjoyment of their property. It was also alleged that the defendant's business was being operated in violation of law because the area is zoned "D" residential by the Philadelphia zoning authorities. Plaintiffs prayed for a preliminary and final injunction as to such operations and for damages in the sum of $2500 and general relief.
The defendant in its answer denied the material allegations in the complaint and further set forth that plaintiffs purchased their home with notice of and in the course of the operations now complained of. Defendant further replied that its premises were not bound by the "D" residential classification of the zoning ordinance because it was a nonconforming use existing prior to adoption of the ordinance.
Subsequently the City of Philadelphia filed a petition to intervene in this proceeding which petition was answered and contested by the defendant. The city's prayer for leave to intervene was granted by order of this court dated March 17, 1952, and an opinion by President Judge MacNEILLE was filed. The city thereupon filed its bill of complaint alleging, in general, that the nuisance set forth in plaintiffs' complaint, i.e., the maintenance of the business of manufacturing, assembling and paint spraying of builders' hardware, also constituted a violation of the Philadelphia Zoning Ordinance of August 10, 1933, passed pursuant to the Zoning Act of May 6, 1929, P. L. 1551, 53 P.S. 3822, et seq. Defendant, by way of answer to the city's complaint, contends that its premises "enjoy exemption from the provisions of [the zoning ordinance] as the same belongs in the class of a non-conforming use, it having been used for similar purposes as it is presently used at the time of the passage of said Ordinance on August 10, 1933."
The matter came on for hearing on May 28 and May 29, 1952. The parties have filed requests for findings of fact and conclusions of law, and we make the following
Findings of Fact1. Plaintiffs, Ignatz Molnar and Rose Molnar, his wife, are the owners of and presently reside at premises 5426 North 2nd Street, Philadelphia, Pennsylvania, and have resided at said premises since June 9, 1950.
2. The defendant, George B. Henne Co., Inc., is the owner and occupier of premises 5248-5250 North 2nd Street, being the southwest corner of 2nd Street and Fisher Avenue, which adjoins the plaintiffs' premises to the north, separated by a party wall 16 to 18 inches thick.
3. On May 2, 1946, the defendant commenced operation of its business of manufacturing hardware on its said premises and it has operated said business continuously, without interruption, from that date to the present time. The husband plaintiff's testimony that the defendant's premises were used as a drug warehouse after June 9, 1950, is incredible and is specifically repudiated.
4. In the course of the operation of its business defendant maintains 2 floors, on the first of which are set up certain assembly lines with about 35 machines, including drill presses, a punch press, milling machines, surface grinders, lathes, a lacquering machine and a chipping department; on the second floor is located a polishing department and one lacquer booth, and it is also used for assembly work and storage purposes.
5. Since the date of beginning its operations in 1946 there has been no increase in noises or vibrations incident to the operation of defendant's business. There is no evidence of record that any fumes emanate from defendant's plant. No new machines were added in the operation of defendant's business within two years prior to the hearing held in this case, with the exception of the replacement of one milling machine. Testimony by or on behalf of plaintiffs indicating that noises and vibrations first emanated from defendant's plant in September, 1950, lacks credibility and is specifically repudiated, as is the exaggerated description of such noises and vibrations as allegedly heard and felt in plaintiffs' home.
6. The defendant company has endeavored to reduce the noise normally incident to its manufacturing operation by putting in special lead bases for its milling machines and special concrete floors with rubber insulation for its punch presses and by shifting its machines to locations furthest from plaintiffs' home consistent with efficiency of production.
7. Defendant's plant operations commence at 8:00 a.m. and finish at 6:00 p.m. each day, except Saturday when the plant is closed at noon. Any period of operation after 6:00 p.m., since commencing its operations to date, was of such short duration as to be without any importance in the matter we are considering. Testimony by or on behalf of plaintiffs indicating that the defendant's plant was routinely daily operated after 6:00 p.m. and after 12 noon on Saturdays and on Sundays lacked credibility and is specifically repudiated. There is no satisfactory evidence that defendant's plant was in operation during the hours normally devoted to rest and sleep.
8. The number of defendant's employees has decreased since commencement of its business in 1946 from about 40 employees in 1946 and about 46 employees in 1947-48 to 28 employees in addition to 3 officers and an office girl at the present time.
9. The manufacturing operations of the defendant result in an undetermined quantity of vibration and noise. It has not been satisfactorily and sufficiently shown that defendant's manufacturing operations have caused the party wall between plaintiffs' and defendant's property to crack, nor has it been satisfactorily and sufficiently proved that defendant's manufacturing operations have caused damages, as alleged, to plaintiffs' household equipment. There is no evidence as to the amount of damages allegedly sustained by plaintiffs.
10. The evidence does not satisfactorily and sufficiently prove that the wife plaintiff suffered severe nervous shock as a result of noise and vibrations incident to defendant's manufacturing operations, nor does the evidence satisfactorily and sufficiently show that the defendant husband sustained such nervous shock as he alleged. The defendant husband worked during the period here pertinent for The Campbell Upholstering Company in Wilmington, Delaware, from the hours 8:15 o'clock a.m. to 3:45 o'clock p.m. and could not have been subjected to noise and vibration to the extent and with the effect he described.
11. The building and premises which defendant occupies has been in use since prior to 1933 for the following purposes and pursuant to the following authority:
(a) From about 1915 to 1927 a building was erected on said land which was used for private dwelling purposes.
(b) From about 1927 to 1937 there was erected thereon the present building, both floors of which were used as a garage for the storage of automobiles; no repair work was performed on the premises.
(c) From about 1937 to about 1940 the building was vacant.
(d) From about 1940 to 1944 the building was again used as a garage for the storage of automobiles but no repair work was done on the premises. On August 27, 1941, an application was entertained by the Traffic Engineering Bureau for approval of use of the premises as a garage, which was approved because the premises had been used as a garage since prior to 1933 and it was therefore a nonconforming use.
(e) In about July, 1945, the building was purchased by George B. Evans Laboratories and was used until early 1946 for manufacturing and warehousing pharmaceutical products and cosmetics. On October 3, 1945, an application was filed to secure authorization for making alterations to use the building for storage of medical supplies, which application was refused because of the D-residential classification of the district. An appeal to the Zoning Board of Adjustment resulted in the issuance of a certificate of variance on October 18, 1945, authorizing the Zoning Department to issue a use permit for storage of medical supplies.
(f) In April, 1946, after a short term of vacancy, the premises were leased to, and subsequently on May 2, 1949, were sold to the present defendant. The defendant went into possession of the premises on May 2, 1946, for the purposes herein set forth. The defendant company on October 9, 1946, applied for a use registration permit for use of the premises as a machine shop and machining, polishing and finishing of hardware material and painting the same, which application was refused by the Zoning Division. An appeal was taken to the Zoning Board of Adjustment and on October 26, 1946, a certificate of variance was refused. Since the commencement of its manufacturing operations to the present time, the defendant has operated without a use registration or zoning permit.
12. The operation of a garage is a use permitted only in areas designated "A Commercial" and less restricted areas: see section 16(32) of the Philadelphia Zoning Ordinance.
13. The area in which plaintiffs' and defendant's properties are located has been and is designated D-residential by the Philadelphia Zoning authorities, which is a more highly restricted zoning category than "A Commercial".
14. The manufacture of hardware is a use for property which is permitted by the Philadelphia Zoning Ordinance only in areas designated "Industrial" or in less restricted areas: see sections 21 (16) and 21 (23) of the Philadelphia Zoning Ordinance.
DiscussionThe only real issue in this case is whether or not the defendant is violating the law in maintaining its hardware manufacturing business at premises 5248-5250 North 2nd Street. If it is so violating the law then its operation is to be enjoined without regard to whether or not the individual plaintiffs would be entitled to enforce the zoning law. If the defendant's operation is not in violation of the zoning law, there is not sufficient satisfactory evidence to show that defendant's operation is so conducted as to constitute a private nuisance as to the plaintiffs. In view of the conclusions which we have reached, we need not review those factors which have impelled us to reject the individual plaintiffs' story as one of mixed truth, exaggeration and untruth. If the defendant's plant were actually a nonconforming use we would rule that there has not been shown such improper or extraordinary method of operation as to justify this court's interference.
The defendant contends that under section 21(31) of the Philadelphia Zoning Ordinance, defining uses in a general Industrial District, there is authorized the "erection, construction alteration or use of buildings or premises and/or land for: . . . (3) Public Garage, gasoline, petrol and oil service stations"; that the defendant's premises were used as a public garage prior to the adoption of the zoning ordinance in 1933 and therefore defendant may convert its premises to any use in the "general industrial" class because of the provisions of the zoning ordinance.
Section 4 of the Philadelphia Zoning Ordinance of 1933 (as amended) pertaining to nonconforming uses provides in pertinent part as follows: "(1) Any land, existing use of which at the time of passage of this ordinance, does not conform with the regulations of the district in which it is located, shall have such use considered a non-conforming use, which may continue on such land but shall be subject to the regulations covering non-conforming uses . . . .
"(2) Any building or the use of any building existing at the time of the passage of this ordinance that does not conform in use, height, location, size or bulk with the regulations of the district in which it is located, shall be considered a non-conforming building or use, and may continue such use in its present location, but shall be subject to the regulations covering non-conforming uses.
"Regulations for non-conforming use
"(3) Change of Use. A non-conforming building or use shall be considered as such unless and until it complies with the regulations of the district in which it is located. Such use shall not be changed to a use designated for a district having less restrictive regulations.
"(4) Discontinued Use. A non-conforming use when discontinued may be resumed as the same class of use but cannot be resumed as a non-conforming use of a lower class." (Emphasis added.)
Defendant's contention is that under the regulation as to discontinued uses it could establish another use of the same class; that as a public garage, the use of its premises was "general industrial" under section 21(31) of the ordinance; that as a pharmaceutical warehouse it was a general industrial use under section 21(27) of the ordinance and therefore it is simply engaging in the same class of use at the present time or commercial vehicles." It is in this classification under either section 21(16) or 21(23).
Section 21(27) authorizes: Pharmaceutical products, toilet preparations, patent or proprietary medicines or baking powder manufacturing, provided no toxic or corrosive fumes, offensive odors or dust are permitted to escape from the building.
Section 21(16) authorizes: Hardware, cutlery and tool manufacturing.
Section 21(23) authorizes: Metal devices and products (fabricated).
We should certainly agree with the defendant if these facts were correct but they are not. As indicated in finding of fact number 12, the operation of a garage is a use permitted only in areas designated "A Commercial" and less restricted areas. Section 16(32) of the zoning ordinance authorizes as a use in the commercial district, "(b) public or commercial garage or repair shop, gas and oil service stations, in which the use of the property fell until 1944 or 1945. provided, [etc.] (c) a parking garage, for pleasure When the variance was granted on October 18, 1945, for storage of medical supplies, that was an acknowledgement by defendant's predecessor of the applicability of the provisions of the zoning ordinance and certainly did not authorize defendant thereafter to select any use in the general industrial classification on the theory of nonconforming use. It should be readily apparent that the grant of a variance is not a general authorization to convert to any use in that class without further approval by the zoning authorities.
The change instituted by the defendant in this case is not a necessary addition to or a natural expansion of a pre-existing use within the principles enunciated in the numerous cases: see Davis Appeal, 367 Pa. 340 (1951); Firth v. Scherzberg, 366 Pa. 443 (1951); Humphreys v. Stuart Realty Corp., 364 Pa. 616, 621 (1950); Cheswick Borough v. Bechman, 352 Pa. 79, 82-83 (1965); Gilfillan's Permit, 291 Pa. 358, 362 (1927).
Where a nonconforming use may fall within the definition of either of two zoning classifications it will for purposes of applying section 4(4) of the zoning ordinance, regulating discontinued uses, be deemed to fall into the more restricted classification. It must be borne in mind that nonconforming uses are in conflict with the over all purpose of securing fair and proper zoning; such uses should not be expanded beyond the necessity for protecting the original property interest. The rule as to nonconforming uses was evolved as a conceived element of due process, it is not a special privilege or exemption from the scheme of zoning: see Beck v. Zoning Board of Adjustment, 69 Pa. D. C. 438, 440 (1949); Bassett on Zoning, pp. 105-109.
The defendant deserves no sympathy for the predicament it now finds itself. Its application (of October 9, 1946) for a use registration permit for use of the premises as a machine shop and machining, polishing and finishing of hardware material, etc., was refused and on appeal to the zoning board for a certificate of variance it was again refused in October, 1946. The defendant then, apparently tiring of the judicial process, elected not to appeal and violated the ordinance.
We make the following
Conclusions of Law1. The defendant's manufacturing operations are a use of its premises classified as "Industrial" and the use of its premises by its predecessors in title as a garage prior to 1933 was a use classified as "A Commercial" which is of a more restricted character than "Industrial", and the present use of defendant's premises therefore do not qualify as a permissible nonconforming use.
2. The maintenance by the defendant of its hardware manufacturing plant at premises 5248-5250 North 2nd Street, is in present violation of law and must be enjoined.
3. The evidence fails to sustain the charge that defendant's use of their premises interferes with the individual plaintiffs' peaceable enjoyment of their premises to such extent as to constitute defendant's operations a nuisance.
Defendant appealed.
Harry R. Back, with him Back Levy, for appellant.
Benjamin Fertik and James L. Stern, Deputy City Solicitor, with them Abraham L. Freedman, City Solicitor, for appellees.
The decree is affirmed on the adjudication and opinion of the late Judge MAWHINNEY for the learned court below, at the appellant's costs.