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EDWARD J. KLAVON AND BARBARA M. KLAVON v. ZONING HEARING BOARD MARLBOROUGH TOWNSHIP (06/20/75)

decided: June 20, 1975.

EDWARD J. KLAVON AND BARBARA M. KLAVON, APPELLANTS,
v.
ZONING HEARING BOARD OF MARLBOROUGH TOWNSHIP, APPELLEE, AND RUSSELL BOYER AND FLORENCE BOYER, HIS WIFE, INTERVENING APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of Edward J. Klavon and Barbara M. Klavon from the Decision of the Zoning Hearing Board of Marlborough Township, Montgomery County, Pa., No. 73-13534.

COUNSEL

William R. Cooper, with him Stewart J. Greenleaf, for appellants.

Frederic M. Wentz, with him McGrory, Scirica, Wentz & Fernandez, for appellee.

Edward F. Kane, with him Bean, DeAngelis, Kaufman & Kane, for intervening appellees.

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

Author: Kramer

[ 20 Pa. Commw. Page 23]

This is an appeal by Edward J. Klavon and Barbara M. Klavon (Klavon) from an order of the Court of Common Pleas of Montgomery County, dated July 8, 1974, which affirmed an order of the Marlborough Township Zoning Hearing Board (Board). The Board's order granted a building permit to Russell Boyer (Boyer) for the construction of a greenhouse and storage building on his property. The Klavon residence adjoins Boyer's property and Klavon opposes the proposed construction.

In 1969 Boyer's predecessor in title was granted three variances from the 1958 Marlborough Township (Township) zoning ordinance (since amended). These variances

[ 20 Pa. Commw. Page 24]

    were sought for the construction of three greenhouses of 20,000, 20,000 and 40,000 square feet. Klavon opposed these variances, and the matter culminated in a decision by the Court of Common Pleas of Montgomery County on August 6, 1970. The lower court there held that the Board had erred in granting all three variances. The variance for the first 20,000 square foot greenhouse was denied, because the court viewed its construction as a permitted use under the agricultural-residential classification then applicable to the entire municipality. In effect, the court held that no variance was required. As to the second and third greenhouses, the court concluded that the requisite hardship had not been shown, that construction would violate area and side-yard requirements, and that one of the greenhouses was proposed for land which the applicant did not own. During this prior litigation one greenhouse (referred to by the parties as the "first greenhouse") was actually built, but it covered an area of only 9,840 square feet instead of the 20,000 square feet contemplated by the original variance application. From the record it appears that no further appeal was taken in the prior case.

Boyer's predecessor defaulted on his mortgage payments, and title to the property eventually passed to Boyer. Boyer applied for a permit to build a new greenhouse (covering 8,000 square feet) and an adjacent storage room (covering 1,600 square feet). The permit was granted on May 30, 1973, and Boyer thereafter spent in excess of $10,000 in anticipation of construction. Upon the protest of Klavon, on August 3, 1973, the permit was revoked. It was reinstated by the Board after hearing on October 19, 1973. Klavon appealed this reinstatement to the lower court and now appeals to us.

Our scope of review in cases where the lower court has not taken additional evidence nor made independent findings of fact is limited to a determination of whether the Board abused its discretion or committed an error of

[ 20 Pa. Commw. Page 25]

    law. Camaron Apartments, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 14 Pa. Commonwealth Ct. 571, 324 A.2d 805 (1974) and Rothrock v. Zoning Hearing Board of Whitehall Township, 13 Pa. Commonwealth Ct. 440, 319 A.2d 432 (1974). The Board concluded alternatively that Boyer (1) is validly expanding a nonconforming use and (2) has acquired a "vested right" which precludes the Township from revoking the permit. The lower court sustained the Board on the nonconforming use theory and made no comment on Boyer's assertion of a vested right.

We note initially that Klavon has not challenged the lower court's prior determination that the existing greenhouse was permitted as a matter of right under the 1958 ordinance.*fn1

In 1970 the old ordinance was repealed and replaced with a totally new zoning ordinance.*fn2 Boyer's property is located in an "RA-1" zoning district. The new ...


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