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APPLICATION FOR BUILDING PERMIT BY FERNANDO PIERORAZIO AND CONCETTINA PIERORAZIO (09/03/80)

decided: September 3, 1980.

IN RE: APPLICATION FOR BUILDING PERMIT BY FERNANDO PIERORAZIO AND CONCETTINA PIERORAZIO, HIS WIFE, IN SPRING TOWNSHIP, BERKS COUNTY, PENNSYLVANIA. FERNANDO PIERORAZIO AND CONCETTINA PIERORAZIO, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Berks County in case of In Re: Application for Building Permit of Fernando Pierorazio and Concettina Pierorazio, his wife, in Spring Township, Berks County, Pennsylvania, No. 166 March Term, 1978.

COUNSEL

Brett A. Huckabee, with him Joseph E. DeSantis, DeSantis & Koch, for appellants.

David A. Binder, with him Norman E. Dettra, Jr., for appellees.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 53 Pa. Commw. Page 594]

This zoning case arose when the instant appellants, Fernando and Concettina Pierorazio, were denied a building permit to expand their mushroom cultivation facility in Spring Township, Berks County. They appealed that denial to the township zoning hearing board and in the alternative requested that body to grant a variance to permit the expansion. The zoning board denied relief on both counts. The Court of Common Pleas of Berks County, without taking additional evidence, affirmed the decision of the zoning board. The appeal to this Court followed.

The key background facts are as follows: In August 1972 the appellants acquired a 3.468 acre parcel

[ 53 Pa. Commw. Page 595]

    of land in the township.*fn1 In that same month they applied for a variance from the then existing zoning requirements, to erect two mushroom houses on that property. That application was denied; however, in the course of ensuing litigation they were granted that variance by stipulation, in 1973. As a result, the Pierorazios were permitted to build their present facility, consisting of two mushroom houses.

In 1975 Spring Township amended its zoning ordinance. The zoning board and the lower court construed the amended ordinance as permitting mushroom houses in "R-1" districts only by special exception and barring them completely in "R-2" districts.*fn2 The property on which the appellants built their original two mushroom houses is partly in an "R-1" district and partly in an "R-2" district. Indeed, the divisional line separating the two zoning districts runs diagonally across the appellants' existing facility.

In August 1977, the appellants applied to the township building inspector for a building permit: to construct two additional mushroom houses on the property. They proposed to attach one new unit on each side of the existing structure or, in the alternative, to attach two new units on one side. The building inspector denied the permit, giving as one of the reasons the failure of the proposed structures to satisfy the 200 foot set back requirement of the zoning ordinance.*fn3

The zoning board, and the lower court in affirming its decision, concluded that the appellants had not shown an "unnecessary hardship" as to be entitled to a variance under ...


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