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D.B.S. BUILDING ASSOCIATION v. CITY ERIE ET AL. (01/14/55)

January 14, 1955

D.B.S. BUILDING ASSOCIATION
v.
CITY OF ERIE ET AL., AND JOHN C. BRICHER, L. NEWELL TARRANT ET AL., INTERVENING DEFENDANTS-APPELLANTS



Appeals, Nos. 147 and 148, April T., 1954, from order of Court of Common Pleas of Erie County, Sept. T., 1953, No. 131, in case of D. B. S. Building Association v. City of Erie et al. and John C. Bricher et al. Order affirmed.

COUNSEL

William B. Washabaugh, Jr., with him Washabaugh & McClure, Erie, for appellants.

Jackson D. Magenau, with him Magenau & Gornall, Erie, for appellee.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ross

[ 177 Pa. Super. Page 488]

OPINION BY ROSS, J.,

This is a zoning case. The D. B. S. Building Association, hereinafter called Association, applied to the "zoning administrator" of the City of Erie for a certificate of occupancy or a "permit" to use certain land owned by it as a parking lot. The administrative official to whom the application was made refused to issue

[ 177 Pa. Super. Page 489]

    the requested certificate or permit and, on February 13, 1952, the "zoning board of appeals" sustained this action. No appeal was taken from this determination. Subsequently the Association brought a proceeding in mandamus in the Court of Common Pleas of Erie County requesting that the "building inspector" of the City be directed to issue a certificate of occupancy. On March 19, 1953 the court sustained preliminary objections to the petition for writ of mandamus and no appeal was taken from the order. On April 13, 1953 the Association again sought a certificate of occupancy through administrative procedures, and again, on May 13, 1953, the "zoning board of appeals" considered the merits of the matter and denied the certificate. The association then appealed to the Court of Common Pleas which, after hearing testimony, entered an order setting aside the action of the "zoning board of appeals" and directing it to issue a certificate of occupancy. From this order two appeals were taken to this Court by owners of property in the vicinity of the proposed parking lot, who had been permitted to intervene in the proceedings before the administrative body and in the court below.

In the foregoing procedural history of the case we have employed the designations of the administrative official and body used by the parties and by the court below. In all probability, however, the "zoning board of appeals" is a board of adjustment as provided for in the Act of June 23, 1931, P. L. 932, art. XLI, section 4120, as amended, 53 PS sec. 12198-4120. The Act provides for an appeal to the board of adjustment "by any person aggrieved or by any city officer affected by any decision of the administrative officer" (53 PS sec. 12198-4123) and imposes upon the board of adjustment the duty to "(1) Hear and decide appeals upon allegations of material error in any order, requirement,

[ 177 Pa. Super. Page 490]

    decision or determination made by any official administering the zoning ordinance" (53 PS sec. 12198-4122).

The Association, a non-profit Pennsylvania corporation, holds title to a building used as a clubhouse, located in a district zoned for commercial use in the City of Erie and on October 23, 1951 it acquired a vacant lot north of and adjacent to its other property. The vacant lot is situated in a district zoned "B" Residence and the zoning ordinance of the City of Erie lists among the permitted uses for such district, "4. Clubhouse (not including a club the chief activity of which is a service customarily carried on as a business)... Accessory uses, incident to any of the principal uses above listed..." The ...


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