Appeal from the Order of the Court of Common Pleas of Luzerne County in case of In Re: Appeal of William Dougherty from Decision of Hazleton Zoning Hearing Board, No. 4739 of 1973.
Edmund J. McCullough, for appellant.
James S. Palermo, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by Judge Kramer.
[ 20 Pa. Commw. Page 618]
This is an appeal filed by William Dougherty (Dougherty) from an order of the Court of Common Pleas of Luzerne County dated June 27, 1974, in which the City of Hazleton's motion to dismiss the appeal of Dougherty was granted.
On February 5, 1973, the City of Hazleton (City) obtained title to certain land here in question, by deed duly recorded February 13, 1973. The land is a lot approximately 20 feet by 36 feet, zoned M-1 (Mining District) by the City's zoning ordinance. The lot is situated across a public street from residential dwellings (located in a commercial zone), one of which is owned by Dougherty.
[ 20 Pa. Commw. Page 619]
Although not clear in the record, apparently the Hazleton Animal Shelter Association (Association), which is a nonprofit corporation, the primary purpose of which is to effectuate humane treatment for lost and unwanted animals, has collected funds sufficient for the erection of an animal shelter. Although the M-1 district regulations make no provision for municipal uses, the Association entered into an agreement with the City to erect the shelter on the subject land. On March 6, 1973, the zoning administrator for the City approved a "zoning permit" for the Association for the construction of said shelter. Dougherty filed an appeal with the Zoning Hearing Board on March 20, 1973, contending that under the zoning ordinance such construction was not a permitted use. On March 26, 1973, the governing body of the City adopted a resolution accepting the Association's offer to build the shelter on City property. Subsequently, on April 24, 1973, the governing body adopted an ordinance which incorporated the March 26 resolution, and, in addition, consented to the erection of the shelter, declared that the shelter would be maintained and operated with City funds, and repealed all inconsistent ordinances or resolutions.
On April 25, 1973, a hearing was held before the Zoning Hearing Board. On May 10, the Planning Commission of the City approved the construction of the shelter, and on May 11th, the Luzerne County Planning Commission approved same. On June 7, 1973, the Zoning Hearing Board dismissed Dougherty's appeal, concluding it did not have jurisdiction over the matter. On July 5, 1973, Dougherty filed an appeal with the court below, the City intervened, and on March 25, 1974, the lower court issued an order dismissing Dougherty's appeal on the same grounds, after receiving some additional documentary evidence.
In his appeal to this Court, Dougherty contends that the City is subject to its own zoning ordinance and, therefore,
[ 20 Pa. Commw. Page 620]
the "zoning permit" could not have been issued without following all the procedural requirements of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101, et seq. In particular, Dougherty contends that the City's amendatory ordinance of April 24, 1973, which undoubtedly made the proposed shelter a permitted use in all ...