Appeal from the Order of the Court of Common Pleas of Erie County in case of Donald and Dorothy Clawson, Conrad and Marian Wolfe, John and Martha Mallin, Richard and Betty Jell, Charles and Ann Bool, William and Esther Simpson, Duane Bush and Virginia Bush, Mrs. Sophie Loesch, Charles and Dorothy Cox, Mr. and Mrs. Robert L. Shaffer, Mr. and Mrs. William Parrish v. Harborcreek Township Zoning Hearing Board, No. 1562-A-1972.
Warren W. Bentz, for appellants.
Eugene J. Brew, Jr., with him Dale & Brew, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Concurring Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer.
This case involves a challenge to the validity of an ordinance rezoning a 45,000 square foot tract of land in Harborcreek Township (Township) from "R-2 residential" to "B-1 local business." The property in question is currently a vacant lot, but the owner, James E. Whitby, proposes to erect a convenience store and a
four-unit apartment on it. Such uses are permitted in a B-1 district but not in an R-2 district.
The Whitby tract is located on the southeast corner of East Lake and Nagle Roads. The adjacent property to the east and south is zoned R-2 and consists of residential uses. Directly to the north, across East Lake Road, the property is zoned B-1 and apparently is to be developed as a shopping center. To the west of Whitby's property, directly across Nagle Road, is Lawrence Park Township, the boundary line of the two townships running down the middle of Nagle Road. The Whitby tract is thus on the corner of an R-2 district, with a B-1 district to the north and a separate municipality to the west, where the nearby property is used for residential purposes although the record does not disclose how it is zoned.
The property here in question was rezoned by the Township Supervisors on March 15, 1972, following a recommendation for such rezoning by the Township Planning Commission. Whitby, who is a Township Supervisor, abstained from voting on this occasion, but it has been suggested by the appellants that Whitby "occupies a unique if not advantageous position" which presumably should have disqualified him in some way from obtaining this rezoning. It may be true that his position was unique, but there was no evidence that Whitby used his position improperly, and there is no statutory provision disqualifying him as a Supervisor from seeking a change in zoning as it applies to his own property. The appellants, who are neighboring property owners, appealed from the action of the Township Supervisors*fn1 to the Township Zoning Hearing
Board (Board), claiming there that the rezoning constituted spot zoning. Following hearings on this appeal, the Board issued an adjudication holding that the rezoning was not spot zoning, and the appellants then appealed to the Court of Common Pleas of Erie County, which took no additional evidence and affirmed the decision of the Board.
Our scope of review where, as here, the lower court has taken no additional testimony on an appeal from a zoning board but has relied entirely on the record compiled before the Board, is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970); Szmigiel v. Zoning Board of Adjustment, 6 Pa. Commonwealth Ct. 632, 298 A.2d 629 ...