Appeal from the Order of the Court of Common Pleas of Chester County, in case of C. N. Agnew, Jr., K.R.I. South, John R. Blackburn, Joseph Morelli and Hyman D. Stein v. Zoning Hearing Board of the Borough of Malvern, No. 123 May Term, 1972.
Robert J. Shenkin, with him, of counsel, MacElree, Platt, Harvey & Gallagher, Ltd., for appellants, Kenny and Scott.
Francis X. Hope, Jr., with him, of counsel, Hope, Portnoff & Grant, Ltd., for appellant, Borough of Malvern.
Thomas A. Riley, with him John C. Snyder and Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for appellees, K.R.I., K.R.I. South and Agnew.
W. Richard Gentry, for appellee, Morelli.
Ronald M. Agulnick, with him Agulnick & Talierco, Assoc., for appellees, Blackburn and Stein.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers did not participate. Opinion by Judge Kramer. Judge Crumlish, Jr., concurs in the result only.
[ 11 Pa. Commw. Page 287]
This is an appeal from an order of the Court of Common Pleas of Chester County dated January 24, 1973, setting aside the adjudication of the Zoning Hearing Board (Board) of the Borough of Malvern (Borough) in which the Board had sustained an appeal from the granting of building permits to the three appellees in this case.
On December 17, 1971, the Malvern Borough Council enacted Ordinances Nos. 190 and 191 which in effect amended its Zoning Ordinance to provide for "OA -- Office Apartment Districts" at designated locations in the Borough. The record before us indicates that certain citizens of the Borough challenged the legality of Ordinances 190 and 191, and that the matter was finally adjudicated in the Court of Common Pleas. That court dismissed the appeals and sustained the validity of said ordinances. The record before us does not indicate whether exceptions were ever filed or an appeal taken from that court order. The record does indicate that the appellees in this case intervened in all of the cases before the lower court wherein the validity of said ordinances was upheld.
In any event, following the adoption of Ordinances 190 and 191, the appellees herein made application for
[ 11 Pa. Commw. Page 288]
building permits which were issued to them. There appears to be no question by anyone that the appellees met all of the requirements and provisions of Ordinances 190 and 191, and that the only question which was raised on appeal to the Board was the legality of the ordinances. At the hearing before the Board, its chairman announced that the Board had no power to pass upon the validity of any provision of the ordinances. However, in its final adjudication, the Board made what ...