Appeal, No. 271, March T., 1962, from order of County Court of Allegheny County, No. A 1224 of 1961, in case of Robert MacLean v. Zoning Board of Adjustment of Borough of Crafton. Order reversed.
Gilbert E. Morcroft, for appellant.
Frank W. Ittel, with him John H. Demmler, and Reed, Smith, Shaw & McClay, for appellee.
Before Bell, C.j., Musmanno, Jones, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal is from an order of the County Court of Allegheny County which reversed the decision of the Zoning Board of Adjustment (Board) of the Borough of Crafton (Borough) which had denied a request for a variance from a zoning ordinance.
The subject real estate - a corner lot - extends 135 feet along Foster Avenue and 119.86 feet along Glenn Street in the Borough of Crafton. This property was purchased in 1958 by Robert MacLean.*fn1 In 1926 the Borough, by ordinance No. 691, zoned the area in which this real estate was located as a Residential District "A" in which district the only permitted uses were one-family dwellings, two-family dwellings of the duplex or double-house type, multiple dwellings, churches, educational institutions, libraries and fraternal buildings, telephone central exchanges and accessory uses
incidental to any of the principal uses not including the conduct of a business.
MacLean, desiring to conduct a gasoline service station business on the premises, in March 1960 petitioned the Borough Council to change the zoning of this property from a residential to a commercial district but Council refused to rezone the property.
On March 14, 1961 MacLean filed with the Borough building inspector an application for a building permit to erect a gasoline service station. This application was refused on the ground that the requested use was not a permitted use in a Residential "A" District. Thereupon MacLean appealed to the Board requesting a variance. On May 12, 1961 the Board rejected MacLean's appeal and, on appeal to the County court, that court remanded the record to the Board for further hearing and findings of fact. The Board on February 21 and March 1, 1962 conducted further hearings, made findings of fact and conclusions of law and again refused a variance. An appeal was then taken to the County Court and that court, without hearing any additional testimony but after viewing the premises in person, reversed the Board and directed the grant of a variance. From that order the Borough has appealed.
MacLean has filed a motion to quash this appeal on the ground that the Borough, not having been a partylitigant in the County Court, has no standing to take this appeal. The record indicates beyond question that at each of the three hearings before the Board the Borough was a party, represented on record by counsel, that such counsel examined and cross-examined witnesses and that the Borough presented witnesses on its behalf. Upon MacLean's appeal to the County Court no testimony was taken and there was no need nor necessity for the ...