This is an appeal, by writ of certiorari, from a decision of the
Mentor Street from Second to Third Streets is classified as D-l Residential on both sides of the street. Originally a tract of ground, having approximately a 90-foot front on Mentor Street, was improved by a dwelling and small buildings used by the owner as a wood planing mill, where he conducted a one-man shop fabricating screens and similar items. This use began in 1921, so that when the zoning ordinance became effective on August 10, 1933, it qualified as a nonconforming use. On July 28,1937, the bureau of building inspection of the department of public safety condemned the structures as a result of which they were razed on January 15,1938, and thereafter the premises continued as vacant ground.
In 1946 it appears that the then owner, Fred Metzler, was successful in securing a permit to erect a single story two-car private garage. His prior attempts to erect an automobile repair shop had been rebuffed. Subsequently on November 18, 1947, Metzler sold the remaining ground to the son of his employe and apparently retired from business. He did, however, permit the grantee and his family to continue the business, under his name, so that they have carried on the occupation of towing wrecks to the property and storing them for repair. It is clear that Metzler never intended to use his garage as a private one since he equipped it with a telephone having a business listing, and with flood lights to illuminate the adjoining lots where the wrecks have been and are being stored presently.
The use permit was refused by the bureau of engineering, surveys and zoning because such use is not permitted in a D-l Residential district. On appeal, the zoning board of adjustment, however, over the protests of neighboring property owners, issued a certificate of variance on the theory that the property had been devoted to a nonconforming use.
We are convinced that the zoning board erred in its decision. Section 4(4) of the zoning ordinance does permit the resumption of a nonconforming use that has been discontinued, if the new use is of the same class and not a lower one. The precise situation now before us is governed, however, by section 4(5) which provides that where a building containing a nonconforming use has been destroyed by fire or legally condemned, it may be reconstructed and used for the same nonconforming use if the building reconstruction is commenced within three years and carried on to completion without interruption. In this case, although we might have the same class of use, it admittedly is not the same use nor was any reconstruction commenced within three years of the condemnation.
The distinction in the ordinance is clear. Nonconforming uses are a thorn in the side of proper zoning. Provisions for such uses were necessary to sustain the constitutionality of the zoning acts, but they should not be perpetuated any longer than necessary. See Bassett on Zoning, pp. 105-109. Where a building is erected and the nonconforming use is discontinued, it is uneconomic and inequitable-to the property owner'
The equities, however, shift materially when the structure housing a nonconforming use is destroyed by fire or condemned. In such case, the protection afforded to the property owner permits him to continue the same business and allows him three years within which to start reconstruction. If he fails to take action within that time, it can be presumed that either his need or his desire are not so great as to require extending the privilege any longer. When a new structure is to be erected thereafter, the property owner must conform to the paramount purpose of zoning and build in accordance with the character of the neighborhood as defined by the zoning maps. Under such circumstances the difference in the value of unimproved land for the conforming and the nonconforming purpose cannot be very substantial. Hence the provisions of section 4(5). The propriety of a similar though more stringent provision in a zoning ordinance has been sustained. See Berberian Zoning Appeal, 351 Pa. 475.
Although counsel for the zoning board presented a discourse of the law at the hearing of the appeal, the brief which he asked permission to file has never been presented. We have examined, among others, the cases of Jennings’ Appeal, 330 Pa. 154; Devereux Foundation, Inc., Zoning Case, 351 Pa. 478; Darling v. Zoning Board of Adjustment et al., 357 Pa. 428; Ventresca v.
We have commented upon the need for a revision of the zoning map. It seems probable that such a revision would reduce the classification of this area to substantially less than “D-l Residential” and permit the highest and best use of this land. Neither this court nor the board, which is merely an administrative tribunal, however, can override both the statute and the ordinance, and by indirection, usurp the legislative power of city council by changing a residential district into a commercial or industrial one. It may be that the antiquated zoning map creates a hardship by making the premises unfit for the prescribed use because of the changed condition of the neighborhood, and unavailable for a use in consonance therewith. The record, however, does not adequately support such a finding of virtual confiscation.
Order
And now, to wit, September 26, 1949, the appeal is sustained, and the decision of the zoning board of adjustment is reversed and the board is directed to revoke the certificate of variance granted by it and to cause to be revoked any use registration permits granted pursuant thereto.