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NATHAN L. BERK AND HENRIETTA BERK v. ZONING HEARING BOARD (12/09/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 9, 1974.

NATHAN L. BERK AND HENRIETTA BERK, APPELLANTS,
v.
ZONING HEARING BOARD, TOWNSHIP OF WHITEHALL, APPELLEE

Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Nathan L. Berk and Henrietta Berk v. Zoning Hearing Board, Township of Whitehall, No. 104 September Term, 1973.

COUNSEL

William H. Eckensberger, Jr., for appellants.

F. Paul Laubner, with him Harry A. Kitey, for appellee.

Martin J. Karess and Charles J. Fonzone, with them Walker, Thomas, Karess, Lipson & Zieger, for intervening protestants.

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

Author: Crumlish

[ 16 Pa. Commw. Page 49]

This appeal is from an order of the Court of Common Pleas of Lehigh County, dated February 26, 1974, affirming the Township of Whitehall Zoning Hearing Board's refusal to grant a special exception for the purpose of constructing and operating a 30,000 square foot supermarket in a C-1 Neighborhood Commercial zoning district. A grocery store or meat market with a total floor space of less than 5,000 square feet and "other similar retail business or service establishments which supply commodities or perform services primarily for residents of surrounding neighborhoods" are permitted by special exception in a C-1 zone. The zoning hearing board determined that the proposed supermarket did not constitute a "similar retail business," and accordingly refused to grant a special exception. After a careful review of the record and the applicable law, we find neither an abuse of discretion nor an error of

[ 16 Pa. Commw. Page 50]

    law in the Zoning Hearing Board's determination, and so we affirm. In so doing, we adopt the able opinion of Judge John E. Backenstoe of the court below which is reported at 35 Lehigh L.J. 461 (1974).

Order affirmed.

Disposition

Affirmed.

19741209

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