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JACKSON v. POTTSTOWN ZONING BOARD ADJUSTMENT (ET AL. (09/26/67)

decided: September 26, 1967.

JACKSON
v.
POTTSTOWN ZONING BOARD OF ADJUSTMENT (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of Montgomery County, No. 65-14862, in case of Frank Jackson, James Corum, Sr., Eulalia Lias et al. v. Pottstown Zoning Board of Adjustment, Walter M. Detweiler and Vivian W. Detweiler, his wife.

COUNSEL

J. Peirce Anderson, with him Ronald H. Reynier, and Wells, Campbell, Reynier & Yohn, for appellants.

John R. Henry, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 426 Pa. Page 535]

This is an appeal from an order entered below in a zoning case.*fn1

This is the factual background:

Walter M. Detweiler and Vivian, his wife (Detweilers), operated a retail beer distributorship on King Street in Pottstown Borough, Montgomery County, prior to May 1965. Because of inadequate facilities, they sought a new location for the business and engaged Joseph Bishop, a real estate broker, to assist in locating a suitable site. He produced the property involved here, located at 757 Beech Street, Pottstown, which is situated in an R-3 Residential District Classification under the Pottstown Zoning Ordinance enacted in 1963. A retail distributorship is not a permissible use of property in such a district.*fn2 However, for many years prior to the enactment of the

[ 426 Pa. Page 536]

    controlling ordinance, the building on the property had been used in substantial part for the operation of a retail family grocery store, another nonpermitted use, which, therefore, enjoyed the status of a lawful nonconforming use.

Acting on behalf of the Detweilers, Bishop filed an application with the borough officials for permission to operate a retail beer distributorship business on the property. As a result he received a letter from the Pottstown Borough Manager assuring him that, under the pertinent provisions of the zoning code,*fn3 the nonconforming grocery use could be validly changed to the nonconforming distributorship use, provided there were no structural alterations to the building involved. The Detweilers then purchased the property and subsequently secured a building permit to construct a walkin refrigerator and a drive-in area for customers. Later a group of nine neighborhood property owners filed a timely appeal from the issuance of the building permit (their first knowledge of any of these proceedings was the initiation of construction).

This appeal was sustained since the zoning code, here in question, allows structural alterations of nonconforming uses only upon the grant of a special exception, which had ...


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