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MOBIL OIL CORPORATION v. ZONING BOARD ADJUSTMENT (05/26/72)

decided: May 26, 1972.

MOBIL OIL CORPORATION, ET AL.
v.
ZONING BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Mobil Oil Corporation and John W. Whitenight, Mary Elizabeth Whitenight, Joyce E. H. Lupey, Elizabeth P. Christ, Marlin P. Weaver, Richard S. Megonnell, Corinne E. Megonnell, Wilmer L. Boughner and Catherine Boughner Brown v. Zoning Board of Adjustment of the Borough of Dauphin, Dauphin County, Pennsylvania, No. 95 March Term, 1971.

COUNSEL

H. Joseph Hepford, with him Lee C. Swartz, Bonnie D. Menaker and Hepford, Zimmerman & Swartz, for appellants.

Jerome T. Foerster, with him Smith, Fox, Roberts, Foerster & Finkelstein, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Concurring Opinion by Judge Crumlish. Judge Kramer joins in this Concurring Opinion.

Author: Per Curiam

[ 5 Pa. Commw. Page 537]

The Zoning Board of Adjustment and the Court of Common Pleas, after a de novo hearing, both refused appellants' request for a variance. We affirm on the opinion of Judge Warren G. Morgan, reported herewith, which ably disposes of all the questions raised, excepting one, i.e.: Does the record sustain the lower court's decision? We find that it does.

The case was exceptionally well tried by all counsel, both before the Zoning Board of Adjustment and the Common Pleas Court. In this appeal, appellants rely on a line of cases of the Supreme Court of Pennsylvania, including Standard Investments Corporation's Petition, 341 Pa. 129, 19 A.2d 167 (1941); Ferry v. Kownacki, 396 Pa. 283, 152 A.2d 456 (1959); Forest Hills Borough Appeal, 409 Pa. 392, 187 A.2d 166 (1963); and Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963). This line of cases and this record might support appellants' position if the lower court had found in favor of granting the variance. Such was the instance in the cases cited. Such

[ 5 Pa. Commw. Page 538]

    is not the instance here. Here the lower court found, with ample evidence to support it, that a variance was not warranted.

Affirmed.

By the Court Below:

This is an appeal from the refusal of the Zoning Hearing Board of Dauphin Borough to grant a variance from the provisions of the zoning ordinance to permit the erection of a gasoline service station on property owned by the individual appellants, which the appellant Mobil Oil Company has conditionally agreed to purchase, and located in a C-1, Semi-Commercial District. A de novo hearing was held before us and from the record we make the following

Findings of Fact

1. The individual appellants are the owners of properties in Dauphin Borough as follows:

John W. and Mary Elizabeth Whitenight, 218 Erie Street; Joyce E. H. Lupey, 228 Erie Street; Elizabeth P. Christ and Marlin P. Weaver, 222-224 Erie Street; Richard S. and Corinne E. Megonnell, 226 Erie Street; Wilmer L. Boughner and Catherine Boughner Brown, 230-232 Erie Street.

2. The individual appellants have executed an agreement to sell the properties to appellant, Mobil Oil Company, which agreement is contingent upon the requested variance being ...


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