Appeal from the Order of the Court of Common Pleas of Erie County in case of Albert R. Calabrese, in his own right, and as President of the Concerned Homeowner's Association v. Zoning Board of Adjustment of Erie, Pennsylvania, and David Schneider and Janice Schneider, his wife, Intervenors, No. 3195-A-1970.
John A. Spaeder, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellants.
Charles D. Agresti, with him Agresti & Agresti, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
This is an appeal from a decision of the Court of Common Pleas of Erie County, which held an amendatory zoning ordinance of the Council of the City of Erie to be invalid and unconstitutional and likewise a building permit issued pursuant to that ordinance to be null and void.
The chronological background of the case is as follows:
April 11, 1970. Appellants David Schneider and his wife, Janice, inquired at the office of the Secretary of the Zoning Board of Adjustment of the City of Erie about the procedural steps necessary in order to gain a building permit for the erection of a six-family unit townhouse on an 82' x 155.77' lot they were desirous of acquiring located at 1421 West 37th Street in Erie. The Secretary informed them that the lot would have to be rezoned from R-1 low density residential to R-3
high density residential to allow the proposed multiple family structure. He further provided them with a petition form and instructed them to canvass the immediate vicinity of the subject property to ascertain the reaction of the surrounding property owners to the proposed use. Mr. Schneider later testified as to the manner in which he canvassed those property owners: "I assume that I made the same approach to almost all of the people, to whom ever answered the door I'd tell them I have this petition which I would appreciate if they would sign changing the zoning of this piece of property, this eyesore down the street, I want to change the zoning from R-1 which is single dwelling to R-3 which is multiple dwelling as I wanted to build a townhouse for my father and myself." (Emphasis added.)
April 22, 1970. The petition with signatures was returned to the Secretary of the Zoning Board of Adjustment and the appropriate fee was paid for the rezoning application.
May 6, 1970. A petition was submitted by the Schneiders to City Council requesting rezoning of the subject property from R-1 to R-3. The Council referred the matter to the City Planning Commission for its advice.
May 20, 1970. The report of the City Planning Commission was sent to the Council recommending denial of the appellants' petition ". . . because the neighborhood is presently zoned and entirely utilized for low density residential purposes and any rezoning would be considered as spot-zoning that is contrary to the basic principles of sound zoning practice."
May 27, 1970. The Planning Commission's report was submitted to the Council which subsequently directed the City Clerk to advertise notice of a public hearing concerning the proposed rezoning to be held
on June 17, 1970. Such notice was advertised on June 2, 9, and 16, 1970.
June 9, 1970. Despite the recommendation of the Planning Commission contrary to the rezoning, the Schneiders purchased the subject property.
June 17, 1970. A public hearing was held and no protest or objection concerning the proposed rezoning was made by anyone present. The City Solicitor was therefore directed on June 24, 1970, to prepare an ordinance amending the official city ordinance by rezoning the subject property from R-1 to R-3.
July 8, 1970. This amending ordinance was passed by Council.
October 8, 1970. There is considerable controversy as to what transpired on this date as to an application for a building permit by a Donald F. Schaeffer of Logan Builders on behalf of the Schneiders. Mr. Schaeffer made the application and deposited with the City Building Inspector a check for the permit fee of $144.00. Either at that time or on the next day Schaeffer was informed that the building plans were unacceptable and certain minor changes had to be made before the permit could be valid. The permit, however, was actually executed (No. 96543) and a copy given to Schaeffer. On the ...