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MUTZIG v. HATBORO BOARD ADJUSTMENT (10/09/70)

decided: October 9, 1970.

MUTZIG, APPELLANT,
v.
HATBORO BOARD OF ADJUSTMENT



Appeal from order of Court of Common Pleas of Montgomery County, No. 68-7084, in case of John Mutzig v. Board of Adjustment of Borough of Hatboro.

COUNSEL

Clarke F. Hess, with him Butera, Detwiler & Hess, for appellant.

Edward Fackenthal, with him Knox Henderson, and Henderson, Wetherill & O'Hey, for board of adjustment, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones and Mr. Justice Eagen join in this opinion. Dissenting Opinion by Mr. Justice Roberts.

Author: O'brien; Pomeroy

[ 440 Pa. Page 458]

This is an appeal from the decision of the Court of Common Pleas of Montgomery County affirming the decision of the Board of Adjustment of the Borough of Hatboro denying appellant an application for a building permit to erect and operate a gasoline service station at the northeast corner of South York Road and Lehman Avenue in the Borough of Hatboro.

Under ยง 1101(N) (10) of the Zoning Ordinance then in effect, gasoline service stations were permitted in that section of Hatboro when allowed as a special exception. Appellant filed an application for a special exception with the Zoning Board of Adjustment on May 9, 1967. However, on May 31, 1967, when appellant appeared with his counsel and witnesses before the Board of Adjustment, the Board refused to entertain appellant's application until the Borough Council had an opportunity to pass upon proposed Amendment #506 to the Zoning Code which would prohibit the erection and operation of gasoline service stations within one thousand feet of other service stations and drive-in restaurants and within two hundred feet of schools,

[ 440 Pa. Page 459]

    churches and other public facilities. The amendment was adopted August 22, 1967.

The meeting of the Zoning Board immediately following the adoption of the amendment was on August 27, 1967. Because the special exception application made by appellant did not conform with the amended ordinance, the application was denied.

The calendar of significant events in the instant case is as follows:

April 10, 1967: Borough Council resolved to conduct a public hearing on the following June 12 to consider amending the special exception provisions dealing with gasoline service stations and drive-in restaurants.

May 9, 1967: Appellant applied to Zoning Board for a special exception granting a building permit.

May 18, 1967: The Hatboro Borough Council advertised that a public hearing would be held to consider the adoption of the amendment to the Zoning Ordinance.

May 31, 1967: Hearing on appellant's appeal scheduled before Board of Adjustment. Board of Adjustment refuses to hold hearing on basis that aforesaid amendment was pending.

In argument both parties assume that the major issue is whether the proposed amendment was pending on May 9, 1967, when appellant first applied to the Board of Adjustment for a special exception. If this were true, this action by the Board of Adjustment could not be upheld. At the time of appellant's appeal to the Board, the proposed amendment was not yet pending.

Appellee contends that Ordinance #506 was pending as of April 10, 1967, when it was first mentioned at a regular Borough Council meeting in the form it was ultimately adopted. At that time it was resolved by the council to conduct a public ...


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