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DANIEL R. MINNICK ET AL. v. ZONING HEARING BOARD (01/22/79)

decided: January 22, 1979.

DANIEL R. MINNICK ET AL.
v.
ZONING HEARING BOARD, TOWN OF MCCANDLESS, ALLEGHENY COUNTY, PENNSYLVANIA ET AL. V.G. FREY, INC., APPELLANT (2 CASES)



Appeals from the Orders of the Court of Common Pleas of Allegheny County in case of Daniel R. Minnick and Mary D. Minnick; Ralph Beachem and Leona W. Beachem; Joseph F. Sunseri and Valeri D. Sunseri; George P. Zappas and Linda M. Zappas; Adult Individuals v. Zoning Hearing Board, Town of McCandless, Allegheny County, Pennsylvania and V.G. Frey, Inc., a Pennsylvania corporation, No. SA 1568 of 1976.

COUNSEL

Richard P. Jacob, for appellant.

Daniel R. Minnick, for appellee.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. Judge Rogers concurs in the result only. Dissenting Opinion by Judge MacPhail.

Author: Wilkinson

[ 40 Pa. Commw. Page 32]

This is an appeal by appellant V.G. Frey, Inc. (Frey), from a common pleas court denial of a motion to quash an original appeal from a Zoning Hearing Board (Board) decision by appellee Daniel Minnick (Minnick) for failure to post bond. Additionally the lower court ordered a remand to the Board to consider a variance. We affirm.

On September 27, 1976 Frey obtained a building permit from the Zoning Hearing Officer of the Town of McCandless to construct a two and one-half story single family dwelling on his property, lot No. 77, Greybrooke Plan No. 1 which was part of a Frey development

[ 40 Pa. Commw. Page 33]

    plan recorded in Allegheny County on September 16, 1964. The zoning open space requirements are established in Ordinance No. 587 and are the same as they were when the development plan was recorded.

This permit was objected to by Minnick and the adjoining property owners and a hearing was held on November 18, 1976 by the Board. The permit was upheld by the Board. Minnick filed an appeal on December 16, 1976. Frey did not receive notice of this appeal. This appeal contended that Frey's house did not meet the minimum rear yard requirement and it exceeded maximum height limits. In February of 1977 the house was completed.

Frey moved to intervene and requested the posting of a bond.

On December 23, 1977 the court held a hearing, allowing Frey to intervene as a defendant. On January 4, 1978, the court denied Frey's request to quash the appeal and ordered Frey to apply for a variance. It also ordered Minnick to post a $25,000 bond pending the variance application. Frey did not apply for the variance, and Minnick did not post the bond. On March 10, 1978 the court entered an order refusing to quash the Minnick appeal and eliminating the bond requirement. This appeal followed.

Frey asserts three errors by the lower court. The first of these is that the appeal by Minnick of the original issuance of the building permit should be quashed ...


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