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MULAC APPEAL (05/25/65)

decided: May 25, 1965.

MULAC APPEAL


Appeal from order of County Court of Allegheny County, No. A 221 of 1963, in re appeal of John Mulac and Ruth Hanna from decision of Zoning Board of Adjustment of City of McKeesport.

COUNSEL

Robert Palkovitz, with him David S. Palkovitz, Jack Palkovitz, and Palkovitz & Palkovitz, for appellant.

Dayne Shaw, for appellee.

A. J. Rosenbleet, City Solicitor, for City of McKeesport, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this concurring opinion.

Author: O'brien

[ 418 Pa. Page 208]

The case at bar involves the rezoning of a parcel of land in the City of McKeesport from "'E' Residential" to "General Business". The land in question was, for a long period, owned by the School District of the City of McKeesport, which maintained a school building thereon. The property consists of one city block, bounded by Soles, Oak, Bridge and Evans Streets, in

[ 418 Pa. Page 209]

    the seventh ward of the City, and measures 210 ft. x 215 ft., being 45,150 sq. ft., or 1.04 acres.

The McKeesport Zoning Ordinance, enacted in 1953, designated the property in question, and the surrounding property, as "'E' Residential". Subsequent to the enactment of the 1953 Ordinance, the school use of the property was discontinued and the School District conveyed the property to Baehr Brothers. Thereafter, the city council enacted an ordinance amending the 1953 ordinance by changing the zoning classification of the property to "General Business". In due course, Baehr Brothers applied for, and was granted, a building permit for the erection of a grocery supermarket on the rezoned premises.

Residents and property owners in the vicinity appealed to the board of adjustment, which sustained the grant of the building permit. An appeal followed to the County Court of Allegheny County, which remanded the matter to the board for further hearing. New hearings were held by the board, it again sustained the grant of the permit and an appeal was taken to the county court. The court, without taking additional testimony, sustained the board and dismissed the appeal; we allowed an appeal in accordance with the provisions of Rule 68 1/2 of this Court.

Appellant contends that the amendatory ordinance is invalid because not accomplished in accordance with a comprehensive plan and does not promote the public health, safety, morals and general welfare. Appellant further argues that the amendatory ordinance constitutes spot zoning and is, therefore, illegal. Appellees urge that the rezoning was within the scope of the city's comprehensive plan; that there was no spot zoning, inasmuch as the general area is mixed in nature, ...


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