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JAMES J. FOLTZ v. ZONING HEARING BOARD BOROUGH MONROEVILLE (04/23/74)

decided: April 23, 1974.

JAMES J. FOLTZ, JR., APPELLANT,
v.
ZONING HEARING BOARD OF THE BOROUGH OF MONROEVILLE, APPELLEE. (TWO APPEALS)



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of Appeal of James J. Foltz, Jr., from the Zoning Hearing Board of the Borough of Monroeville and Appeal of Henry J. Borden, et al. from the Zoning Hearing Board of the Borough of Monroeville, No. S.A. 145 of 1971 and Appeal of Henry J. Borden, et al. from the Zoning Hearing Board of Borough of Monroeville and Appeal of James J. Foltz, Jr., from the Zoning Hearing Board of the Borough of Monroeville, No. S.A. 543 of 1971.

COUNSEL

David W. Craig, with him William John Chapas and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellant.

Jerome M. Meyers, with him Meyers & Keyser, for appellees, protestants.

Richard L. Rosenzweig, with him Rosenzweig & Rosenzweig, for zoning board.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 13 Pa. Commw. Page 310]

Consolidated here are appeals from two interlocutory orders of the Court of Common Pleas of Allegheny

[ 13 Pa. Commw. Page 311]

County before this Court pursuant to the Act of March 5, 1925, P.L. 23, 12 P.S. § 672 et seq. As the origin of both controversies can be traced to the failure of the Zoning Hearing Board of the Borough of Monroeville (Board) to render a timely decision on an application for a use variance filed by Appellant James J. Foltz (Foltz) in the latter part of 1970, the intertwined factual and procedural histories of both appeals can best be explicated chronologically.

On October 8, 1970, Foltz appealed to the Board a denial of his application for building permits to construct a shopping center composed of small stores and professional offices partially in an R-I residential zone prohibiting such a use. He there challenged the procedural validity of the ordinance, and, alternatively, requested a use variance to develop commercially that part of his property zoned residential. The Board conducted hearings through December 10, 1970, and rendered a decision denying the appeal on January 26, 1971, or forty-six days after its last hearing. Foltz then filed a mandamus action in the Court of Common Pleas of Allegheny County on February 17, 1971, to compel the issuance of permits, contending that the Board's decision was deemed to be in his favor as not rendered within forty-five days as required by Section 908(9) of the Pennsylvania Municipalities Planning Code (Planning Code), Act of July 31, 1968, P.L. 805, 53 P.S. § 10908(9). This position was ultimately sustained by this Court in Foltz v. Monroeville, 5 Pa. Commonwealth Ct. 304, 290 A.2d 269 (1972).

In the interim, however, Foltz had filed a precautionary appeal from the January 26, 1971 actual adverse decision of the Board (160 C.D. 1973 herein, the "Foltz Appeal"), and into which the protestant-neighboring property owners (Appellees herein) were permitted to intervene. After he succeeded in the mandamus action, however, Foltz understandably withdrew

[ 13 Pa. Commw. Page 312]

    this appeal. It is from the lower court's order of January 16, 1973, striking this discontinuance and withdrawal, and essentially permitting the intervening protestants to continue the appeal as appellants, though the Board's decision was ...


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