Appeal from the Order of the Court of Common Pleas of Lycoming County in case of Lycoming Burial Vault Co., Inc. v. The Zoning Hearing Board of the Borough of Montoursville, No. 77-0066.
William S. Kieser, with him Kieser & Gahr, for appellant.
Michael H. Collins, with him McNerney, Page, Vanderlin & Hall, for appellee, Montoursville Zoning Hearing Board.
Elliot Newman, with him McCormick, Lynn, Reeder, Nichols & Sarno, for appellee, Irvin C. Siegel.
Judges Rogers, Blatt and DiSalle, sitting as an panel of three. Opinion by Judge Rogers. Judge DiSalle dissents.
[ 41 Pa. Commw. Page 295]
Lycoming Burial Vault Co., Inc. (Lycoming), the appellant in this zoning case, has its place of business in an R-2 Zoning District under the Montoursville Borough Zoning Ordinace. The R-2 zoning district is a residential district and Lycoming has operated its business as a valid nonconforming use. On October 9, 1975 Lycoming applied for a zoning and building permit for the use of a vacant lot adjacent to its main building for the open storage of concrete septic tanks. Borough Council approved the application and issued the permit on January 5, 1976, as a conditional use, basing its decision upon a provision of the zoning ordinance authorizing Borough Council to "allow as a conditional use . . . the expansion of a nonconforming
[ 41 Pa. Commw. Page 296]
use." Pursuant to the permit, Lycoming developed the adjacent lot by the installation of a concrete apron and a seven foot high chain link fence.
One Irvin Siegel, a neighbor, saw the work in progress on Lycoming's lot on May 15, 1976 and on May 24, 1976 visited the borough's offices, where he learned that Lycoming was developing its lot pursuant to the zoning and building permit granted on January 5, 1976. Siegel informed other neighbors and retained counsel to represent his and their interest in the matter.
On June 7, 1976 Siegel, counsel and a group of Lycoming's neighbors appeared at a Borough Council meeting and protested Lycoming's project. The minutes of the meeting show that the lawyer employed by Siegel acted as spokesman, that a lengthy discussion of Lycoming's permit was had, and that Borough Council agreed to restudy the matter and to advise the neighbors' lawyer before any further action was taken. The Borough's solicitor who was present told the neighbors that they should look to their own lawyer not to him, the Borough solicitor, as to what they should do. Siegel and the neighbors did nothing.
On July 12, 1976 Borough Council conducted another meeting at which the neighbors appeared. The Borough solicitor called upon by Borough Council stated that he had advised Council that its action granting the zoning and building permit was a proper one, and some member or members of Council remarked that Council would follow its solicitor's advice.
On July 15, 1976 the lawyer filed an appeal from Council's action granting Lycoming's permit of January 5, 1976 to the Zoning Hearing Board. The appeal was thus filed 52 days after May 24, 1976, the date on which the ...