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ATRIA v. MOUNT LEBANON TOWNSHIP BOARD ADJUSTMENT (04/22/70)

decided: April 22, 1970.

ATRIA, INC.
v.
MOUNT LEBANON TOWNSHIP BOARD OF ADJUSTMENT



Appeal from order of Court of Common Pleas (formerly County Court), of Allegheny County, No. A 2201 of 1967, in case of Atria, Inc. et al. v. Board of Adjustment of Mount Lebanon Township.

COUNSEL

Edwin L. Klett, with him J. Gary Kosinski, and Eckert, Seamans & Cherin, for appellant.

Alfred C. Maiello, with him John B. Nicklas, Jr., and McCrady & Nicklas, for appellee.

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

Author: Cohen

[ 438 Pa. Page 318]

This is an appeal by the Township of Mount Lebanon, a first class township, from the order of the Court of Common Pleas of Allegheny County (then the County Court) reversing the order of the Board of Adjustment

[ 438 Pa. Page 319]

    of Mount Lebanon Township and requiring that use and occupancy permits be issued to Atria, Inc.

Atria, Inc. owns and operates a combination grocery store, beer parlor and restaurant on lot 17 in the Parker Gardens plan of lots fronting on Beverly Road, a four lane main arterial highway in Mount Lebanon Township. Antoinette Atria resides on the second floor of that building and has done so for many years. Atria, Inc. also owns lot 18 which abuts lot 17 to the west and on which is a building rented to a third party and used as a garage. Nicholas Atria is the owner of a private residence located on lot 22 in the Parker Gardens Plan which fronts on Newburn Drive, a residential street which intersects Beverly Road a short distance to the west of lot 18. Lots 17 and 18 are in a zoning district which has been designated NS Neighborhood Shopping, and lot 22 is located in an R-4 Residential district. For convenience we shall refer to appellees collectively as Atria.

This action centers around the desire of appellees to use the private driveway located on lot 22 as a means of access to a parking lot which is located on parts of lots 17, 18 and 26, and which serves the restaurantbeer parlor located on lot 17. On July 21, 1958, the Mount Lebanon Township Commissioners approved a site plan submitted by Joseph Atria, former president of Atria, Inc., now deceased, for accessory off-street parking in the rear of the building in which the beer parlor is located. Their approval was conditioned on the fact that access to the parking area was to be only by a route which traversed property then owned by Abe Finkelstein (now owned by Rollier Bros., Inc.) which was situate to the east of appellees' property. The Township Commissioners denied Joseph Atria's request that access be across the driveway located on lot 22 and required him to build a wall across the driveway

[ 438 Pa. Page 320]

    thereby ensuring that Newburn Drive and the driveway would not provide access. By an agreement between Atria and Finkelstein access to the parking lot was obtained from the east, and until 1967 traffic entered the lot over the property now owned by Rollier Bros.

On May 8, 1967, Rollier Bros. was issued a permit to erect a cyclone fence along the rear portion of their property which abutted the Atria property. When the fence was completed on July 27, 1967, access to the parking lot from the east was effectively cut off. By agreement between Atria and Rollier Bros., the former were permitted ...


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