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SGARLAT v. KINGSTON BOROUGH BOARD ADJUSTMENT. (05/07/62)

May 7, 1962

SGARLAT, APPELLANT,
v.
KINGSTON BOROUGH BOARD OF ADJUSTMENT.



Appeal, No. 382, Jan. T., 1961, from decree of Court of Common Pleas of Luzerne County, Dec. T., 1959, No. 118, in case of Margretta Sgarlat, Joseph Sgarlat, Harry Sgarlat et al. v. Board of Adjustment of Kingston Borough. Appeal dismissed.

COUNSEL

Neville B. Shea, for appellants.

William J. Fahey, Solicitor, for Kingston Borough, appellee.

Wanda P. Chocallo, Assistant Attorney General, with her David Stahl, Attorney General, for Water and Power Resources Board, appellee.

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

Author: Cohen

[ 407 Pa. Page 326]

OPINION BY MR. JUSTICE COHEN

This is an appeal from the final decree of the court en banc of Luzerne County affirming the refusal of appellee, Board of Adjustment of Kingston Borough (Board), either to grant appellants' request for a zoning variance or to declare the relevant zoning ordinance unconstitutional.

In 1936, Frank B. Sgarlat, individual appellants' father and predecessor in title purchased the tract of land at issue in these proceedings. The tract consisted of more than nine acres of unimproved brush land which is flooded annually by the adjacent Susquehanna River. Bounding one side of the land is a dike constructed in 1914 or 1915 to afford flood control protection. Several hundred feet to the east of this tract, separated by another property, is located a sand and gravel preparation plant owned by appellants.

In 1928, almost eight years before appellant's predecessor purchased the land in question, Kingston Borough adopted a general zoning ordinance. By the terms of the ordinance, the land in question was placed in a General Residence District in which permitted uses included farming, gardening, nurseries and greenhouses.

When Frank B. Sgarlat died testate in 1937, appellants acquired title to the property. Later the same

[ 407 Pa. Page 327]

    year, appellants received notice from the Water and Power Resources Board of the Commonwealth that a dike was to be built on a portion of their land. This new dike, completed ...


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