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WILLIAM CHERSKY JOINT ENTERPRISES v. BOARD ADJUSTMENT (06/29/67)

decided: June 29, 1967.

WILLIAM CHERSKY JOINT ENTERPRISES, APPELLANT,
v.
BOARD OF ADJUSTMENT



Appeal from order of County Court of Allegheny County, No. A. 1780 of 1965, in case of William Chersky Joint Enterprises and Industrial Safety Belt Corporation v. The Board of Adjustment of City of Pittsburgh, Elsie M. Guffey, T. F. X. Higgins et al.

COUNSEL

Harold Gondelman, with him Herbert Jacobson, and Jacobson & Gondelman, for appellants.

Frederick A. Boehm, Assistant City Solicitor, for appellee.

Gilbert E. Morcroft, for intervening appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Justice Musmanno dissents.

Author: O'brien

[ 426 Pa. Page 34]

Appellants, William Chersky Joint Enterprises and Industrial Safety Belt Corporation, are the owner and lessee, respectively, of a six-floor building at 568 South Aiken Avenue in the City of Pittsburgh. Under the 1923 Pittsburgh Zoning Ordinance, the property was zoned light industrial. The 1958 Master Zoning Ordinance

[ 426 Pa. Page 35]

    of the City of Pittsburgh rezoned the property to R-2, two-family residence district. When the 1958 ordinance was enacted, various commercial and manufacturing operations were being conducted in the building.

Industrial Safety Belt is engaged in the manufacture and storage of various plastic and leather products on the 3rd, 4th, 5th and 6th floors of the building. Such operation is conducted under a special exception granted by the board of adjustment on January 17, 1964. At that time, the board of adjustment, pursuant to Industrial Safety Belt's application filed in September of 1963, granted permission for the "change of non-conforming use to another non-conforming use". The board at that time imposed conditions, limiting the hours of operation from 7:00 A.M. to 7:00 P.M. on week days with no Sunday operations to be conducted, and required that all the latest precautions should be taken to eliminate noise. This decision of the board was appealed by residents of the neighborhood to the County Court of Allegheny County, which affirmed. We denied certiorari.

On July 7, 1965, Industrial Safety Belt applied for an occupancy permit, requesting permission to use the 1st and 2nd floors. The zoning administrator disapproved the application on the ground that the request could only be granted by the board of adjustment as a special exception. Industrial Safety Belt then applied to the board of adjustment for a special exception. The request was denied by the board, and the denial was affirmed by the County Court of Allegheny County. We granted certiorari.

Appellants contend that the decision of the board of adjustment constitutes an abuse of discretion; that the court below abused its discretion in refusing to allow appellants to introduce additional testimony in ...


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