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PETER C. SCHAAF v. ZONING HEARING BOARD BOROUGH EDINBORO. BOROUGH EDINBORO (11/21/75)

decided: November 21, 1975.

PETER C. SCHAAF
v.
THE ZONING HEARING BOARD OF THE BOROUGH OF EDINBORO. THE BOROUGH OF EDINBORO, APPELLANT. PETER C. SCHAAF V. THE ZONING HEARING BOARD OF THE BOROUGH OF EDINBORO AND CONCERNED CITIZENS OF EDINBORO. THE CONCERNED CITIZENS OF THE BOROUGH OF EDINBORO, APPELLANTS



Appeals from the Order of the Court of Common Pleas of Erie County in case of Peter C. Schaaf v. The Zoning Hearing Board of the Borough of Edinboro, No. 1629-A-1974.

COUNSEL

Ritchie T. Marsh, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellant, Borough of Edinboro.

Robert G. Huhta, with him Dunn & Conner, for appellant, Concerned Citizens.

James F. Toohey, with him Gary V. Skiba, and Quinn, Gent, Buseck & Leemhuis, Inc., for appellee.

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

Author: Wilkinson

[ 22 Pa. Commw. Page 51]

This case is an appeal by the Borough of Edinboro at No. 476 C.D. 1975, and an appeal by the Concerned Citizens of the same municipality (Citizens), at No. 513 C.D. 1975, from an order of the Court of Common Pleas of Erie County which reversed a determination by the Zoning Hearing Board of Edinboro (Board) and granted a variance to Peter C. Schaaf (Schaaf). The appeals have now been consolidated before this Court.

On January 4, 1973, Schaaf and his wife, as tenants by the entireties, acquired, as part of a 2.985 acre parcel of land located in Edinboro, Erie County, an undivided one-half interest in an undeveloped lot which was originally designated as Lot #20 of the John B. Davis Subdivision. Lot #20 varies in width from 49 to 56.45 feet and is 125 feet in length, an area of approximately 7,050 feet. At the time of its acquisition by Schaaf, the lot was, and is currently, zoned residential under an R-1 classification which permits single family detached dwellings*fn1 on a minimum lot size of 20,000 square feet with front and rear yard requirements of 30 and 20 feet respectively.

[ 22 Pa. Commw. Page 52]

The remainder of the 2.985 acre parcel is zoned commercial. The record shows that the John B. Davis Subdivision, including Lot #20, was recorded on March 6, 1958, which was prior to the adoption of the first zoning ordinance in Edinboro in 1959.

In October or November of 1973, Schaaf acquired another parcel of land for commercial development on which was situated a two-story residence known as the "McClellan House." As an afterthought, Schaaf decided to renovate and sell the house and in the latter part of January, 1974, he relocated the structure on Lot #20 pursuant to a building permit approved by the Borough Council of Edinboro on November 12, 1973.

Council approval of the permit was given notwithstanding the failure of the lot to meet the minimum zoning area requirement and the indication on the plot plan contained on the reverse side of the permit that the location of the McClellan House on the lot would yield only a 20-foot front yard and an 11-foot rear yard, thus violating zoning yardage requirements. Subsequently, however, at a meeting held January 28, 1974, Borough Council recognized its error and rescinded its approval of the permit, ordering Schaaf to cease and desist taking any further action thereunder.

In an effort to have the permit reissued, Schaaf petitioned the Erie County Court of Common Pleas which, however, ordered him to first attempt to obtain a variance from the Board before seeking court relief. Accordingly, Schaaf applied to the Board requesting a size variance for Lot #20 to allow the relocation of the McClellan House thereon. The application was ...


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