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ALTEMOSE CONSTRUCTION COMPANY v. ZONING HEARING BOARD (10/04/71)

decided: October 4, 1971.

ALTEMOSE CONSTRUCTION COMPANY
v.
ZONING HEARING BOARD



Appeal from the Order of the Court of Common Pleas of Montgomery County, No. 70-2593, in case of Appeal of Altemose Construction Company from the Decision of the East Norriton Township Zoning Hearing Board. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania from the Supreme Court of Pennsylvania.

COUNSEL

H. Kenneth Butera, with him Butera & Detwiler, for appellant.

J. Edmund Mullin, with him Wisler, Pearlstine, Talone & Gerber, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Manderino.

Author: Manderino

[ 3 Pa. Commw. Page 329]

The Altemose Construction Company is the equitable owner of a triangular piece of industrially zoned land of approximately five acres in East Norriton Township.

On November 8, 1969, Altemose applied to the Zoning Officer of the Township for a building permit to construct an addition to a building presently existing on the tract. On the plan and application which were filed the westerly side yard of the existing building was shown as twenty feet. The submitted proposed addition to the building did not involve the westerly side yard because the proposed addition was on the easterly side of the existing building. Based on the application and proposed plan, the permit was issued and soon after, construction of the addition was begun.

On January 8, 1970, Altemose received an order from the building inspector, partially revoking the permit which had been issued two months earlier, because it was discovered that portions of the addition being constructed varied from the original submitted plan and application. The addition being constructed was not totally on the easterly side of the existing building. A portion of the addition being constructed adjoined the northerly side of the existing building and thus did affect the westerly side yard. Portions of the new addition were only seven and one-half feet from the western

[ 3 Pa. Commw. Page 330]

    boundary of the land. The inspector, therefore, revoked the permit for all portions of the addition which were closer than twenty feet to the western boundary.

After the revocation, Altemose applied to the Zoning Hearing Board for a variance which was denied. On appeal to the Montgomery County Court of Common Pleas, the Zoning Hearing Board was affirmed. From that decision, an appeal was taken to the Supreme Court and was transferred to the Commonwealth Court pursuant to the Appellate Court Jurisdiction Act (Act of July 31, 1970, P.L. , Act No. 223, 17 P.S. 211.101 et seq.).

Altemose first argues that the order of January 8, partially revoking the permit, was invalid because it was not timely under the Municipalities Planning Code. Section 915 (2) of that Act states in part as follows: "No person shall be allowed to file any proceeding with the board later than thirty days after any application for development, preliminary or final, has been approved by an appropriate municipal officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges or proves that he failed to receive adequate notice of such approval." (Act of July 31, 1968, P.L. , No. 247, Art. IX, ยง 915, 53 P.S. 10915 (1971). This section obviously does not refer to the present situation. The order of January 8 was merely one demanding compliance with the original plan and application. It did not, in any way, limit or reverse the activity on which the granting of the permit was premised. Nor was the order designed to ...


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