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KURREN APPEAL (04/20/65)

decided: April 20, 1965.

KURREN APPEAL


Appeal from order of Court of Common Pleas of Westmoreland County, April T., 1964, No. 276, in re appeal of H. M. Kurren and Beatrice Kurren, his wife, from decision of Board of Adjustment of City of New Kensington.

COUNSEL

Seymour J. Schafer, with him Harry Crum, Solicitor for City of New Kensington, and Markel, Markel, Levenson & Fischer, for appellant.

C. William Berger, with him Morris M. Berger, and Berger & Berger, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 417 Pa. Page 625]

This appeal challenges the validity of an order of the Court of Common Pleas of Westmoreland County which declared a zoning ordinance of the City of New Kensington (City) invalid on the ground that the City had failed to follow the enabling statute procedure requisite for the enactment of such ordinance.

On November 12, 1963, city council adopted a resolution setting November 26, 1963, as the date for consideration of a proposed zoning ordinance and directing that notice thereof be given by publication. The published notice stated: "Notice is hereby given that, at 8:00 p.m., on Tuesday, November 26, 1963, in the City Hall, at 2400 Leechburg Road, New Kensington, Pennsylvania, the Council of the City of New Kensington will consider the adoption of a proposed zoning ordinance for the City of New Kensington. . . . [Description of proposed ordinance].

"Copies of the final report and recommendations of the Planning and Zoning Commission of the City of New Kensington are on file at the City Clerk's Office in the City Hall, New Kensington, Pennsylvania, and may be inspected by any person interested between the hours of 9:00 a.m. and 5:00 p.m. Monday to Friday inclusive

[ 417 Pa. Page 626]

    and 9:00 a.m. to 12:00 noon Saturday." (Emphasis supplied). This notice was duly published.

On November 26, 1963, the city council held a meeting which was attended by more than 100 persons -- including H. M. Kurren and Beatrice Kurren, his wife [Kurrens], the present appellees,*fn1 -- who were given an opportunity to express their views for and against the proposed zoning ordinance.*fn2 At sometime thereafter, undisclosed by this record but certainly before the end of December 1963, the city council enacted the proposed zoning ordinance.

On January 18, 1964, the City building inspector, acting under the zoning ordinance, issued a building permit for the alteration of the front of a store property located across the street from Kurrens' property. On January 29, 1964, Kurrens notified the City Zoning Board of Adjustment [Board] that they were appealing from the issuance of this building permit upon the ground that the zoning ordinance was invalid in that it had not been enacted in accordance with the provisions of ยง 4112 of the Third Class City Code.*fn3 After hearing, the Board held that the enactment of the zoning ordinance was valid. On Kurrens' appeal, the Court of Common Pleas of Westmoreland County held ...


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