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JOHN O'MALIA AND LILLIAN O'MALIA v. COUNCIL TOWNSHIP WILKES-BARRE (10/12/78)

decided: October 12, 1978.

JOHN O'MALIA AND LILLIAN O'MALIA, HIS WIFE
v.
COUNCIL OF THE TOWNSHIP OF WILKES-BARRE, SITTING AS THE ZONING HEARING BOARD OF WILKES-BARRE TOWNSHIP. COUNCIL OF THE TOWNSHIP OF WILKES-BARRE, APPELLANT



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of John O'Malia and Lillian O'Malia, his wife v. Council of the Township of Wilkes-Barre, sitting as the Zoning Hearing Board of Wilkes-Barre Township, No. 10598 of 1976.

COUNSEL

Kenneth C. Marano, with him Chester B. Muroski, for appellant.

Stephen B. Killian, for appellees.

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

Author: Blatt

[ 38 Pa. Commw. Page 122]

The Council of Wilkes-Barre Township, sitting as a zoning hearing board (Township), has appealed from an order of the Court of Common Pleas of Luzerne

[ 38 Pa. Commw. Page 123]

County which reversed the Township's denial of a petition for rezoning brought by John and Lillian O'Malia (O'Malias).

The O'Malias are the owners of a tract of land containing approximately 1.3 acres on which they have constructed a commercial building. The tract was zoned "B-1" as a "Neighborhood Business District" which permitted such uses as professional offices, mortuaries, neighborhood retail stores and restaurants when the O'Malias petitioned the Township to rezone their property to "B-4" as a "General Business District," permitting a wider variety of business uses. After a hearing on this request, the Township denied the petition. An appeal from this denial was taken to the Court of Common Pleas of Luzerne County which decided the case on the basis of stipulated evidence and exhibits and held the petition for rezoning should be granted. The Township now appeals here.*fn1

Our scope of review, when a lower court considered a zoning case upon facts as stipulated by the parties

[ 38 Pa. Commw. Page 124]

    before it and decided the case de novo on the merits, is limited to a determination as to whether or not that court committed an error of law or abused its discretion. In Re: Appeal of the Emmanuel Baptist Church, 26 Pa. Commonwealth Ct. 427, 364 A.2d 536 (1976).

The lower court here examined the nature of the properties surrounding the O'Malias' tract and found as a fact that "[t]he character of the property surrounding the subject premises is general commercial." Specifically, the property is located on Blackman Street, a major traffic artery, with the area located immediately to the rear being zoned as a heavy industrial district. The land on one side is zoned "B-4" for general business, and the present uses in this zone include a retail lumber yard, a skating rink, and a parking lot. The other side abuts the Wilkes-Barre city line. Directly across Blackman Street is another "B-4" zone in which a tavern, auto body shop, commercial store, and a radiator repair shop are located. On either side of this "B-4" zone are areas for two-family residences. On the basis of these findings, the lower court concluded that the present zoning creates an island composed exclusively of the ...


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