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SCHECHTER v. ZONING BOARD ADJUSTMENT (ET AL. (03/16/59)

March 16, 1959

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



Appeal, No. 228, March T., 1958, from order of County Court of Allegheny County, No. A1666 of 1957, in case of Dr. Murray P. Schechter v. Zoning Board of Adjustment of the Township of Hampton. Motion to quash denied and record remanded.

COUNSEL

David W. Craig, with him Robert Van der Voort, and Moorhead & Knox, and Van der Voort, Royston, Robb & Leonard, for Township of Hampton, appellant.

Ralph H. Smith, Jr., with him Smith & Zehner, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Jones

[ 395 Pa. Page 312]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This is an appeal by Hampton Township from an order of the County Court of Allegheny County which reversed the action of the township's zoning board of adjustment and directed the issuance of a variance for the use of a portion of Dr. Schechter's property, located in a farm-residence district, as a drive-in theatre.*fn1 Dr. Schechter has filed a motion to quash this appeal principally on two grounds: (1) that the township, not being a party of record and having been denied

[ 395 Pa. Page 313]

    the right to intervene, has no status to maintain an appeal, and (2) that the appeal was not taken from the final order of the court below within the prescribed statutory period.*fn2 A discussion of the extremely involved factual background is necessary for a proper disposition both of the appeal and the motion to quash the appeal.

In July of 1957, Dr. Murray P. Schechter filed an application with the zoning officer for permission to use 12 acres of his 60 acre tract for "a commercial purpose." Since the property is located in a farm-residence district, the request was denied. On appeal to the zoning board of adjustment, a variance was refused because Dr. Schechter failed to establish any unnecessary hardship, and, in the opinion of the board, the request for a variance constituted in fact a request for a change in zoning, and, as such, was beyond the board's jurisdiction. After the board's hearing, Dr. Schechter, by letter, specified a drive-in movie theatre as the intended use, but did not file any specific plan as to the nature of the proposed construction.*fn3 An appeal was taken to the court below where Dr. Schechter again requested "any legitimate commercial use." The court below, after taking additional testimony, held that the residential development of the 12 acre tract was not economically feasible primarily because of the swampy condition of the land, and the probability of coal rights under the land being exercised thus causing a danger of subsidence due to a lack of surface support. The court directed the issuance of a variance for the use of the premises as a drive-in

[ 395 Pa. Page 314]

    theatre which Dr. Schechter had requested during the hearing, again without the benefit of any specific plan. This order "[ordering] and [directing] that the zoning board issue the permit as applied for," was entered on February 20th, 1958.

On February 24th, 1958, Dr. Schechter and his attorney, by virtue of the court's order, requested a permit from the zoning officer. On the advice of the township solicitor, (who believed the order was absolute in its language), the zoning officer issued a permit. The township supervisors were not notified of the court's order until the evening of February 24th, at which time they resolved to revoke the permit and contest the court order. Dr. Schechter's attorney was personally notified by the township solicitor of this ...


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