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TAGED INCORPORATED v. ZONING BOARD ADJUSTMENT BOROUGH MONROEVILLE (05/06/71)

decided: May 6, 1971.

TAGED INCORPORATED, A CORPORATION AND THOMAS G. ZAIMES, AN INDIVIDUAL
v.
THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF MONROEVILLE



Appeal from the order of the Court of Common Pleas of Allegheny County, Civil Division, No. SA 69, 1969, in case of Taged, Inc., a corporation and Thomas G. Zaimes, an individual v. The Zoning Board of Adjustment of the Borough of Monroeville. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Leonard M. Mendelson, for appellant.

Richard L. Rosenzweig, with him Rosenzweig & Rosenzweig, for appellee.

Jerome M. Meyers, with him Meyers & Keyser, for intervening appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision).

Author: Per Curiam

[ 2 Pa. Commw. Page 54]

The appeal in this zoning case requires us to decide whether or not a landlocked drive-in theatre operator may be denied the right to have his patrons use an access road, created by perpetual easement for ingress and regress. The lower court, after taking testimony, ruled against the drive-in theatre operator, affirming the decision of the Zoning Board. For the reasons that will appear, we reverse.

Appellants are Taged Incorporated and Thomas G. Zaimes, President of Taged Incorporated (Taged). Appellees are the Zoning Board of Adjustment of the Borough of Monroeville (Board) and Intervenors, Edward Shields and Rose Shields, his wife (Shields). The interest of Shields is as property owners of land on which they reside and which borders on the access road involved in this case. Until these proceedings began, access for theatre patrons has been over a strip of land leased from Anna Wukich (Wukich).

The following facts and circumstances are undisputed: On August 26, 1958 the theatre parcel was approved for rezoning to C-2 (commercial use) and the rezoning took place by ordinance dated September 9, 1958. On November 1, 1958 the predecessors to Taged entered into a lease for a term of 15 years for the premises in question which, as has been previously noted,

[ 2 Pa. Commw. Page 55]

    were then landlocked except for the access road easement. Taged's claim to use the access road is based upon his lease of land in the chain of title from the grantee of the easement privilege by nomination agreement from the Pennsylvania Turnpike Commission (Turnpike). The "ingress and regress" provided is by perpetual easement over land of Shields and Wukich to Northern Pike Road. There is no question raised as to Taged's right to use the easement. The question is as to the extent and character of Taged's use. The nomination agreement is dated December 1, 1955 and is attached to and forms part of the record. Its relevant terms will be noted in our subsequent discussion.

Shortly prior to November 1, 1958, when the main lease for the theatre area was executed, Taged's predecessors executed a lease for a similar term of 15 years (from November 1, 1958 to October 31, 1973) with Anna Wukich for a strip of land to be used for a theatre access route to Mosside Boulevard. At that time Mosside Boulevard was a more heavily traveled highway than Northern Pike Road and may still be. Taged or its predecessor defaulted on the lease with Wukich and Wukich has since refused to grant leases for more than a term of one year. Taged is thus subject to the uncontrolled decision of Wukich whether or not she will renew the lease which provides the present means of ingress and regress to the theatre. In addition, Wukich has pursued a practice of requiring rental increases. The rental payments include tax charges which must be paid by Taged in whatever amounts are assessed including tax increases without limit. Also there is evidence that Wukich has made it difficult or impossible to grade and otherwise deal with the tract for theatre purposes which are incident to use of the land for the entrance and exit of patrons.

On December 3, 1968, Taged applied for the exception involved herein. Urging that it found its arrangement

[ 2 Pa. Commw. Page 56]

    with Wukich economically unfeasible and its use of its theatre property subject to the hazard of decisions by Wukich, Taged sought leave to remove its ticket booth and marquee to the Northern Pike entrance to its access right-of-way. Certain changes had taken place with regard to the circumstances involving Taged's theatre premises between the grant of commercial zoning for theatre use by the Zoning Board in 1958 and the time when Taged applied for the right to use its access easement in 1968. During this period of approximately 10 years Taged invested some $200,000 in its theatre property. Mosside Boulevard has continued to be a major arterial highway, largely commercial in aspect, whereas Northern Pike Road which intersects Mosside Boulevard is basically residential in the area on either side of Taged's right-of-way exit, with these major exceptions: (1) Said right-of-way opens on Northern Pike directly opposite a funeral home; (2) Located approximately 400 feet East of the said right-of-way opening on Northern Pike is Monroeville Volunteer Fire Company No. 4, a fire station housing major fire fighting equipment and two ambulances; (3) The Westinghouse Electric Corporation (Westinghouse) acquired from Taged's lessors extensive holdings of land adjacent to Taged for use as a Nuclear Center. Westinghouse's acquisitions were completed in 1967 and included land for a private access road and virtually all of the land over which the theatre's access right-of-way passes. Rather than join with Taged in establishing a common right-of-way ...


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