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JAMES E. KOPELMAN v. ZONING HEARING BOARD CITY NEW KENSINGTON AND RIVERCREST CIVIC ASSOCIATION. RIVERCREST CIVIC ASSOCIATION (12/12/80)

decided: December 12, 1980.

JAMES E. KOPELMAN
v.
THE ZONING HEARING BOARD OF THE CITY OF NEW KENSINGTON AND RIVERCREST CIVIC ASSOCIATION. RIVERCREST CIVIC ASSOCIATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of James E. Kopelman v. The Zoning Hearing Board of the City of New Kensington, No. 159 of 1979.

COUNSEL

R. E. Valasek, for appellant.

John N. Scales, with him David T. Cofer, Scales and Shaw, for appellee.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 55 Pa. Commw. Page 307]

Appellants, as objectors in this zoning case, appeal from the Court of Common Pleas of Westmoreland County, which reversed the Zoning Hearing Board of the City of New Kensington (board) and ordered the issuance of a zoning certificate to appellee James E. Kopelman as requested in his application for a special exception under the New Kensington zoning ordinance.

[ 55 Pa. Commw. Page 308]

Kopelman sought to construct two restaurants on a parcel of about two acres*fn1 in an area zoned "R-4 Transitional Residential District"; under the ordinance "Eating Places" are allowed in R-4 districts under stated special exception standards. On the tract adjacent to Kopelman's is a restaurant previously authorized by special exception. The remaining perimeter of Kopelman's property adjoins public streets and single-family dwellings.

The board denied Kopelman's application. Without taking new evidence, the common pleas court reversed the board because of legal error in the board's interpretation of Section 307 of the ordinance, the special exception provision which permits an "Eating Place" in R-4 districts "upon lots adjoining a legally permitted use other than a one or two-family dwelling."*fn2

The initial issue in this case is whether the adjoining special exception restaurant use is such a "legally permitted use" as Section 307 requires to qualify a subject lot for a special exception. We agree with the common pleas court that it is, and thus that the board erred in refusing the requested special exception on that ground.

As Judge Loughran stated:

[The ordinance] does not define permitted use or special exception. However, . . . it must be noted that the ...


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