Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Stephen L. Seeherman v. Wilkes-Barre City Zoning Hearing Board, No. 366 of 1977.
Stephen L. Seeherman, appellant, for himself.
John A. DiPietro, with him John A. Gallagher, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. Opinion by Judge Crumlish, Jr.
[ 42 Pa. Commw. Page 177]
The instant appeal arises from a challenge to the substantive validity of a zoning ordinance enacted by the Council of the City of Wilkes-Barre which effected a change in a zoning district boundary from R-3 (Multi-Family Residential) to C-1 (Commercial Office). We reverse and remand to the Common Pleas Court.
Sambourne Street ran in a northwardly direction from Sullivan Street, parallel to South Main Street on its east and South Franklin Street on its west. Both sides of South Main Street were zoned for commercial use. Homes fronted on both sides of Sambourne Street, but its easterly side was zoned for commercial use.
Residential properties fronting on South Franklin Street extended eastwardly, abutting the rear portions of the residential properties fronting on the westerly side of Sambourne Street. Stephen L. Seeherman, Appellant, is the owner as co-trustee of a South Franklin Street property adjacent to the rezoned area. He also held an easement which permitted him to use an eight-foot alley or private driveway giving him rear access to Sambourne Street.
In October of 1976, the Redevelopment Authority filed a declaration of taking and acquired approximately 40 parcels of land which included the land subject to the easement. It demolished the standing houses and applied to the Wilkes-Barre City Council for a zoning change. Appellant objected to the proposal and subsequently enacted rezoning of the westerly side of Sambourne Street as impermissible "spot zoning" before the Planning Commission of the City of Wilkes-Barre and the Wilkes-Barre City Council.
[ 42 Pa. Commw. Page 178]
The Redevelopment Authority then conveyed the 40 parcels to a private developer, D & D Motors, Inc., which began constructing a shopping center thereon.
On October 26, 1976, Seeherman filed an application with the Wilkes-Barre City Zoning Hearing Board (ZHB), which is the Appellee, pursuant to Section 1005 of the Pennsylvania Municipalities Planning Code (MPC),*fn1 53 P.S. § 11005, again alleging spot zoning. ZHB held a public hearing on his application on November 18, 1976. Thereafter, Seeherman was notified by letter dated December 20, 1976, that ZHB had upheld the validity of the Ordinance and that his application had failed to comply with the applicable provisions of the MPC.
Seeherman appealed to the Court of Common Pleas*fn2 which, without hearing additional evidence, dismissed the appeal as procedurally defective, citing his failure to supply ZHB with "plans and other materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ...