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SHENDER v. ZONING BOARD ADJUSTMENT (ET AL. (04/15/57)

April 15, 1957

SHENDER
v.
ZONING BOARD OF ADJUSTMENT (ET AL., APPELLANT).



Appeal, No. 322, Jan. T., 1956, from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1955, No. 1184, in case of Harry M. Shender v. Zoning Board of Adjustment et al. Order reversed.

COUNSEL

Irvin Stander, for intervenor, appellant.

James L. Stern, Deputy City Solicitor, with him David Berger, City Solicitor, and Matthew W. Bullock, Jr., Assistant City Solicitor, for intervening appellant.

Elliott Unterberger, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 388 Pa. Page 266]

OPINION BY MR. JUSTICE ARNOLD

Horace F. Janney, intervenor below, appeals from the order of the court below which reversed the decision of the Zoning Board and directed issuance of permits applied for by appellee. The City of Philadelphia is intervening appellant.

When appellee, Shender, purchased the land it was zoned partly "C" residential and partly "A" commercial. Under that classification the construction as applied for by Shender was permissible on the facts stipulated before the court. His application was denied however, on the strength of an ordinance enacted shortly after his purchase which changed the classification to "B" residential. This ordinance had been enacted with only eight days notice prior to public hearing. On July 27, 1955, this Court in Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238, held that such an ordinance was invalid if less than fifteen days' notice had been given. Thus the ordinance changing classification of Schender's land was ineffective. Subsequent to the Kelly case on October 16, 1955, he filed another application for construction which, by stipulation, was agreed to conform to the requirements of the original classification. This was refused by the Zoning Division of the Department of Licenses and Inspections on the strength of the invalid ordinance.

Shender appealed to the Zoning Board, and hearing was set for November 9, 1955, at which time the intervenor, Horace F. Janney, obtained continuance. On November 17, 1955, an amendatory ordinance to change the classification to "B" residential was introduced. On November 28, 1955 and Zoning Board denied the permit, after hearing had on November 22, and Shender filed his appeal in the court below on December 13,

[ 388 Pa. Page 2671955]

. The amendatory ordinance was enacted December 30, 1955.

The court below held that the original amendatory ordinance "... was invalid for insufficient advertising ...," found that "... as of the time the permits were requested, the second amendatory ordinance had not been passed" and as of that time "... the requested use was permissible ..." It thereupon held that "... the facts here more nearly approach the Shapiro case ..." [Shapiro ...


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