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PFILE v. BOROUGH SPEERS (CROSS-APPEALS) (12/21/72)

decided: December 21, 1972.

PFILE, ET AL.
v.
BOROUGH OF SPEERS (CROSS-APPEALS)



Appeals from the Order of the Court of Common Pleas of Washington County in case of I. Vernon Pfile and Virginia Pfile, his wife; C. Vance DeiCas and Veronica Mae DeiCas, his wife; and Melvin B. Bassi and Lillian M. Bassi, his wife, v. The Zoning Board of Adjustment of Speers Borough, Washington County, Pennsylvania, No. 561 May Term, 1970.

COUNSEL

Melvin B. Bassi, with him Woodward & Bassi, for applicants.

Jack H. France, with him Murphy and France, for Borough of Speers.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Blatt. Judge Rogers joins in this dissent.

Author: Mencer

[ 7 Pa. Commw. Page 228]

These appeals are from a decision of the Court of Common Pleas of Washington County reversing the decision of the Zoning Board of Adjustment (now Zoning Hearing Board) of Speers Borough which denied the application for a variance requested by the landowners herein in order that a gasoline service station could be built on the subject property which is zoned R-2 Residence District, a classification which makes no provision for such a commercial use.*fn1 The applicable zoning

[ 7 Pa. Commw. Page 229]

    ordinance has not been amended in relevant part since its passage in 1950.

The subject property (Lot Nos. 141-147) is part of the A. T. Morgan Estate Plan of Lots, No. 5, which was planned by the Wilkinsburg [Allegheny County] Real Estate & Trust Company (Wilkinsburg) and recorded in the Recorder's Office of Washington County on September 28, 1956. Sometime in early 1967, C. Vance DeiCas entered into an agreement with Wilkinsburg to purchase the subject property. He later testified that at the time of this purchase, he had not determined whether to use the property for a residential use or for a commercial use, that he had no idea of placing a gasoline station on the site at that time, and that he had knowledge that the property was zoned residential when he bought it.

Then on May 14, 1968, a request was made for a variance to utilize the property for an unspecified use. This request incidentally suggested that the property could easily be rezoned commercial. On May 22, 1968, the appropriate municipal body decided that more information was needed concerning the intended use of

[ 7 Pa. Commw. Page 230]

    the property, but it unanimously opposed any rezoning of the property from residential to commercial. Nine days thereafter, Wilkinsburg formally conveyed to Mr. DeiCas and Veronica Mae DeiCas, his wife, Lot Nos. 141-147 inclusive. Then by deed dated June 4, 1968 (recorded June 20, 1968), Mr. and Mrs. DeiCas conveyed to Mr. and Mrs. Bassi and Mr. and Mrs. Pfile a two-thirds interest in the property, the "purpose of this deed [being] to vest in the Grantees [including Mr. and Mrs. DeiCas] the title to said premises in equal one-third shares, as tenants by the entirety, respectively."

On June 3, 1968, Mr. Bassi requested that a hearing be held on the May 14, 1968, variance request (inexplicably, he was not informed, until July 1, 1970, that such a hearing would be held), and on June 14, 1968, he further requested the Borough Council to open to the public the only access road (Belmont Alley) to the property. This latter request was denied on July 3, 1968.

The landowners subsequently entered into a lease agreement with Atlantic Richfield Corporation conditioned on the granting of a variance for the property in order to permit the construction of a gasoline service station. A building permit in order to construct a gasoline station was applied for on May 21, 1970, but was denied because of the proposed commercial use in a residential zone.

A hearing concerning the request for a variance was finally held on July 15, 1970, by the Zoning Board of Adjustment which subsequently denied the request. An appeal was taken to the lower court which reversed the Board's decision, subject to certain conditions. These cross appeals resulted (1) because the Board took exception to the reversal of its denial of the variance application; and (2) because the landowners took exception

[ 7 Pa. Commw. Page 231]

    to a condition imposed by the lower court that no "high-rise" (over 20 feet) sign advertise the proposed station's location. Since the lower court took no additional evidence, our duty is to determine whether the Board clearly abused its discretion or committed an error of law.

The court below described the property's location as follows: "The location for the proposed gasoline station is a tract of land situated at the intersection of Legislative Route 62141 as relocated and Ramp XI of the Speers interchange for Interstate Highway 70. The tract is bounded on the southwest by Legislative Route 62141, on the northeast by an alley [Belmont Alley] in the A. T. Morgan Estate Plan of Lots, No. 5, beyond which sit various houses in said plan. On the west it is bounded by Ramp XI aforesaid and on the east by Legislative Route 62141 again as the Legislative Route curves to the north. It is a triangle of land comprising 0.8736 acres with frontage along the Legislative Route of about 485 feet and a depth along Ramp XI of about 70 feet which narrows as the Legislative Route cuts into it as the Route travels east."

Interstate 70, with its Ramp XI constituting the property's western boundary, and L.R. 62141, which was relocated so as to bisect Morgan Plan No. 5, were constructed some time after 1956 (the record does not indicate when). As originally planned by Wilkinsburg, however, Lot Nos. 141-146 were rectangular in shape, being 100 feet long and 60 feet wide. The westernmost lot, No. 147, was more square in size, being approximately 75 feet wide. A street, Helen Avenue, divided Plan No. 5 and served as the southern boundary of Lot Nos. 138-147 inclusive.

Using the official drawings in the record as a guide, the construction of L.R. 62141 seems to have progressively curtailed the ...


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