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MICHAEL R. DEVLIN ET AL. v. ZONING HEARING BOARD CITY EASTON (06/07/78)

decided: June 7, 1978.

MICHAEL R. DEVLIN ET AL., APPELLANTS
v.
ZONING HEARING BOARD OF THE CITY OF EASTON, NORTHAMPTON COUNTY, PA. AND CHARLES E. CATALANO AND COMMONWEALTH TRUST COMPANY, INTERVENORS



Appeal from the Order of the Court of Common Pleas of Northampton County in case of Michael R. Devlin and Carol D. Devlin, his wife; Charles H. Yeager and Jacqueline N. Yeager, his wife; Alphonse R. Bellafatto and Ann D. Bellafatto, his wife; Kenneth S. Lilley and Alice L. Lilley, his wife; and Thomas B. Stotz and Irene C. Stotz, his wife v. Zoning Hearing Board of the City of Easton, Northampton County, Pennsylvania and Charles E. Catalino and Commonwealth Trust Company, No. 322 January Term, 1977.

COUNSEL

Thomas L. Walters, with him Coffin, DeRaymond, Shipman & Stitt, for appellants.

William P. Hogan, with him Hogan & Scott, for intervenors.

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

Author: Disalle

[ 36 Pa. Commw. Page 22]

This case comes before this Court upon appeal of an order of the Court of Common Pleas of Northampton County at No. 322 January Term, 1977. The order requires Michael R. and Carol D. Devlin, Charles

[ 36 Pa. Commw. Page 23]

H. and Jacqueline H. Yeager, Alphonse R. and Ann D. Bellafatto, Kenneth S. and Alice L. Lilley, and Thomas B. and Irene C. Stotz (Appellants), to post a graduated bond pursuant to a zoning appeal taken under Section 1008(4) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11008(4).

On February 5, 1977, the Zoning Hearing Board (Board) of the City of Easton granted certain variances to Charles E. Catalano and The Commonwealth Trust Company (Developers). These variances pertained to the construction of 30 units of twin residential dwellings on approximately seven acres of land within the City of Easton. They permitted the Developers to subdivide their land and construct the units on plots which typically contain 4,000 square feet. The applicable ordinance requires a minimum of 4,800 square feet per unit plot. The Board also did not impose any additional land requirement as a "slope penalty" on some of 4,000 square foot plots as a condition of the variance.

In response to the Board's granting of these variances to the Developers, Appellants, who were adjoining property owners, filed an appeal to the Court pursuant to Section 1008 of the Code, 53 P.S. § 11008. They alleged in the appeal that the Board committed errors of law and abused its discretion in granting the variances. Specifically, they alleged that the variances were improper because the proposed project was in violation of maximum density requirements, it failed to provide sufficient parking, proposed cul-de-sacs on property not owned by the Developers, and finally, that they were granted without a showing of the requisite unnecessary hardship. The Appellants also contended before the lower court that the Board failed to provide the adjoining landowners with notice of the proposed hearing on the variances.

[ 36 Pa. Commw. Page 24]

Thereafter, the Developers petitioned the lower court to compel the Appellants to post a bond as provided under Section 1008(4) of the Code, 53 P.S. § 11008(4), as a condition to proceeding with the appeal. A hearing on this petition was held on April 1, 1977. The Developers presented expert testimony indicating that the project would be greatly reduced in value if any substantial delay occurred. The Appellants offered testimony to show that the cost of the bond was prohibitive and beyond their means. On May 4, 1977, the lower court entered an order requiring the Appellants to post a graduated bond in the total amount of $60,000.*fn1 The Appellants failed to post any of the bonds, filing instead the appeal presently before us.

The Appellants argue that the trial judge's decision was an abuse of discretion. They contend that the Developer failed to produce any substantial credible evidence which showed that damages would be sustained as a result of their appeal. Appellants argue that since an appeal under Section 1008 of the Code does not automatically stay the action, no aspect of the Developer's project is being delayed by the appeal. Without a showing of delay, Appellants contend that it is impossible for the Developers to show damages because any loss will have been incurred voluntarily. In addition, the Appellants argue that even if the appeal has the ...


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