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CORNELL UNIFORMS v. ABINGTON TOWNSHIP (03/09/73)

decided: March 9, 1973.

CORNELL UNIFORMS, INC.
v.
ABINGTON TOWNSHIP, ET AL. (TWO CASES)



Appeals from the Order of the Court of Common Pleas of Montgomery County, in cases of Appeal of Cornell Uniforms Inc. from the Decision of Abington Township Zoning Hearing Board, No. 71-9891, and Appeal of Theodore N. Marchese from the Decision of Abington Township Zoning Hearing Board, No. 71-10326.

COUNSEL

John T. Acton, with him Mabel Ditter Sellers and Jenkins & Acton, for appellant.

Daniel B. Michie, Jr., with him James W. Brown, Jr., for appellees.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 8 Pa. Commw. Page 318]

This case arose when the Township building inspector decided that the appellant was not in violation of the Township Zoning Ordinance in the operation of its business. An adjoining landowner appealed this decision to the Zoning Hearing Board. The Board affirmed the decision of the building inspector, but imposed four restrictions on the operation of the business. Both sides appealed and the appeals were consolidated below by stipulation of the parties. The lower court entered the same order in each case affirming the Zoning Hearing Board. Appeals were filed in both cases to this Court and consolidated here. We must affirm the lower court.

The appellant operates an establishment which launders and dry cleans uniforms of various types, as well as sells and rents them. This location has been used by a laundry and dry cleaning establishment since 1956 when the appellant's predecessor obtained a special exception from the zoning order then in effect. The special exception contained the following condition: "The business must not be noxious or offensive by reason of odor, dust, smoke, gas, vibration, illumination or noise, or constitute a public hazard whether by fire, explosion, or otherwise, and should the proposed business become a public nuisance by reason of any of the above

[ 8 Pa. Commw. Page 319]

    listed items, the Board of Adjustment (now Zoning Hearing Board) will cause the applicant and owner to appear for further hearing." Appellant took over the operation of this business in 1961. In 1966, the Zoning Ordinance was amended and this area was designated F-1 Commercial in which this business is not permitted. Thereafter, the business continued as a nonconforming use with the reservation contained in the original special exception.

On August 31, 1970, appellant secured a building permit which permitted him to enlarge the building which then contained 3,933 square feet by adding an extension which contained 6,283 square feet and by providing parking for twenty-two cars and one truck. The issuance of this permit would appear on its face to have been in clear violation of the Zoning Ordinance which prohibits enlarging any building containing a nonconforming use by more than 25%. This permit permitted an extension of approximately 160%. Nevertheless, no appeal was filed from the granting of this permit. After the building was completed, the neighbors became acutely aware of the increase in activity and what, to them, appeared violations of the Zoning Ordinance in the operation of the business and complained to the building inspector, as well as to the Township Department of Public Safety. When they could secure no relief because of the building inspector's decision that the operation of the business was not in violation of the Zoning Ordinance, one of the adjoining property owners appealed to the Zoning Hearing Board.

At the hearing, no question was raised concerning the validity of the building permit nor did the Board consider it. There is, therefore, no merit in appellant's position that this proceeding is an attempt to circumvent the appeal time limitation on the granting of the permit, which appeal time had long since expired.

[ 8 Pa. Commw. Page 320]

Appellant raises three questions. First, appellant asserts that the Board has no jurisdiction since no provision is made in the Code for this appeal. This argument must fall before the specific provisions of Section 1804 of the Zoning Ordinance of the Township of Abington, Ordinance No. 1189, paragraph 1, which reads: "1. Appeals to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the Township affected by any decision of the Building Inspector. Such appeal shall be taken within a reasonable time, as provided by the Rules of Procedure of the Board, by filing with the officer from whom the appeal is taken, and with the Board, a notice of appeal specifying the grounds thereof." Section 909 of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, Art. IX, 53 P.S. ยง 10909, provides in part: "The board shall hear and decide appeals where it is alleged by the ...


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