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EDWARD J. KIRK AND EVA A. KIRK v. ROBERT SMAY (12/22/76)

decided: December 22, 1976.

EDWARD J. KIRK AND EVA A. KIRK, HUSBAND AND WIFE, INDIVIDUALS, AND PBS, INC., APPELLANTS
v.
ROBERT SMAY, BOROUGH MANAGER, BOROUGH OF HELLERTOWN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in case of Edward J. Kirk and Eva A. Kirk, husband and wife, individuals, and PBS, Inc. v. Robert Smay, Borough Manager, Borough of Hellertown, No. 221 May Term, 1975.

COUNSEL

Cregg E. Mayrosh, with him Cohn & Mayrosh, for appellants.

Donald B. Corriere, with him Haber and Corriere, for appellees.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 28 Pa. Commw. Page 14]

The appellants*fn1 here filed an action in mandamus with the Court of Common Pleas of Northampton County requesting that the court order Robert Smay, zoning officer of the Borough of Hellertown (Borough), to issue a building permit to them. The court sustained the appellee's preliminary objections, dismissed the complaint and this appeal followed.

The appellants wanted to build a medical office building on the premises of an existing shopping center, a permitted use under the Borough's zoning ordinance in the general commercial district here involved.*fn2 Section 64.6(1) of the ordinance provided,

[ 28 Pa. Commw. Page 15]

    however, that site plan approval was required for this permitted use, and Section 63 of the ordinance provided further as follows:

Site Plan Approval for Permitted Uses.

Where site plan approval is required for a permitted use in nonresidential districts said site plan shall be submitted to the Planning Commission for approval prior to issuing a building permit. (Emphasis added.)

It is clear, therefore, that the appellants were required to obtain site plan approval as a prerequisite to a building permit.

The lower court believed that the zoning officer's discretion and duty in regard to the issuance of a building permit was the same whether or not the site plan had been approved, and presumed, for the purpose of making its decision here, that the site plan had been approved by the planning commission. It then found that the building permit had been denied by the zoning officer because the proposed facility did not conform with the parking requirements ...


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