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ROGALSKI v. UPPER CHICHESTER TOWNSHIP (03/13/62)

March 13, 1962

ROGALSKI
v.
UPPER CHICHESTER TOWNSHIP, APPELLANT.



Appeal, No. 132, Jan. T., 1962, from order of Court of Common Pleas of Delaware County, June T., 1959, No. 1933, in re zoning application of Stanley J. Rogalski v. Zoning Board of Adjustment of Upper Chichester Township. Order affirmed.

COUNSEL

William A. Welsh, for appellant.

Francis J. Catania and Peter J. Nolan, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Bok, Eagen and O'brien, JJ.

Author: Eagen

[ 406 Pa. Page 552]

OPINION BY MR. JUSTICE EAGEN

The appellee is the owner of an unimproved piece of land in Upper Chichester Township, Delaware County. He applied to the township's zoning board of adjustment for the grant of a special exception or a variance in order to permit him to erect a cinderblock building on the premises and to conduct thereon a business of cutting up and dismantling wrecked automobiles in order to sell, wholesale and retail, the parts thereof.

The zoning board conducted a full hearing which was stenographically transcribed. The board did not specifically pass upon the application for a variance. However, the record discloses no proof that warranted its issuance. See, Silverco Inc. v. Zoning Board of Adjustment, 379 Pa. 497, 109 A.2d 147 (1954). The board refused to grant the special exception. It found that the by-products of the proposed business operation would involve acetylene-torch cutting, hammering and pounding, producing noxious odors, illumination and noise. Further, that the presence of cut-up and wrecked automobiles on the property would be unsightly. It concluded that such a business would not benefit the community in a manner as to qualify for the grant of an exception under the township's zoning ordinance.

The landowner appealed the board's ruling to the court of common pleas. The court conducted a short hearing at which counsel for both the board and the landowner were present. The following transpired: (1) A full description of the land was introduced into evidence; (2) A total of twelve photographs of the particular land involved and of other properties in the immediate area were identified by oral testimony and introduced into evidence over objection of the board's counsel; (3) Copies of the zoning ordinance and zoning map of the township were introduced into evidence;

[ 406 Pa. Page 553]

(4) The hearing was continued indefinitely and the record left open at the request of the board's counsel in order to afford him the opportunity of subsequently making five other photographs part of the record. This was subsequently accomplished by stipulation.

The court later entered an order reversing the board's action, and remanded the record back with directions to grant the special exception under appropriate limitations and safeguards to be determined by the board. From this action, the township appeals.

The lower court considered the matter de novo and informed all counsel at the hearing that such was contemplated in view of the fact that additional testimony, although ...


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