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NAGORNY v. ZONING HEARING BOARD AND KAISERMAN (01/11/72)

decided: January 11, 1972.

NAGORNY, ET AL.
v.
ZONING HEARING BOARD AND KAISERMAN, ET AL., INTERVENORS



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of George W. Nagorny, et al. v. Zoning Hearing Board of Springfield Township and William P. Dean and Kevy K. Kaiserman, Intervenors, No. 4340 of 1971.

COUNSEL

Edward F. Muller, Jr., for appellants.

Anthony R. Semeraro, with him Mullray, Ryan & Semeraro, for appellee.

Nochem S. Winnet, with him Fox, Rothschild, O'Brien & Frankel, for intervenors.

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

Author: Mencer

[ 4 Pa. Commw. Page 134]

On January 13, 1970, the Springfield Township Board of Commissioners adopted Ordinance No. 837 amending the Township Zoning Map to rezone a 45.0479 acre tract of ground from Special Use District to Shopping Center District. Appellants, residents of both Springfield Township and Swarthmore Borough, after issuance of a building permit to the owner-developer, appealed from that rezoning to the Springfield Township Zoning Hearing Board (Board) under Article IX, Section 910 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. , No. 247, 53 P.S. ยง 10910.

The principal thrust of appellants' position is that a shopping center of this magnitude will generate so much traffic that the surrounding arteries will not be able to handle same with safety, and consequently, a hazardous condition will exist which will have a substantially

[ 4 Pa. Commw. Page 135]

    adverse effect upon the health, welfare and morals of the community.

At several hearings before the Board the fact issue was isolated to the traffic conditions involved in the development of the tract as a shopping center. The Board eventually filed 92 findings of fact, including a finding that the use of the property as a shopping center will not adversely affect the health, safety, morals, or general welfare of the community or the surrounding area.

Since, under Section 910 of the Code, the Board decides only contested questions of interpretation, the appeal then proceeded to the Court of Common Pleas of Delaware County where the appellants alleged "that the decision of the Zoning Hearing Board was incorrect insofar as its findings of fact and conclusions were concerned." The Court, without taking additional testimony, dismissed the appeal.

"The test to be applied by this Court when the proceeding before the court below was based entirely on the record established before the board is whether the board clearly abused its discretion or committed an error of law." Marple ...


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