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GERALD POHIDA v. ZONING BOARD KLINE TOWNSHIP (05/27/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 27, 1981.

GERALD POHIDA, APPELLANT
v.
ZONING BOARD OF KLINE TOWNSHIP, APPELLEE

Appeal from the Order of the Court of Common Pleas of Schuylkill County in the case of Gerald Pohida v. Zoning Board of Kline Township, No. 1003-1978.

COUNSEL

Stephen P. Ellwood, Krasno & Krasno, for appellant.

Joseph P. Semasek, for appellee.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 59 Pa. Commw. Page 263]

Gerald Pohida filed an application for a variance which would allow him to operate a junkyard on his commercially zoned land in Kline Township, Schuylkill County. A hearing, attended by appellant, his counsel, and protesting neighbors, was held before the Zoning Hearing Board on February 14, 1978. As the hearing judge in the Court of Common Pleas of Schuylkill County later found,*fn1 Pohida, during the course of the hearing, in dissatisfaction with either the conduct or substance of the proceeding, gathered together the maps and exhibits which constituted his documentary evidence, told the Board "I don't want the God-damned junkyard" and left the meeting. Three months later Pohida's counsel wrote to the Zoning Hearing Board asking for a copy of any decision it might have made. The Board responded in writing to the effect that the Board had concluded that Pohida was not entitled to his junkyard because his land was too close to a residential area. Pohida thereupon filed a zoning appeal to the Court of Common Pleas of Schuylkill County, asserting that the variance should be deemed approved because the Zoning Hearing Board had not rendered a decision in writing within forty-five days of the February 14, 1978 hearing, citing Section 908(9) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10908(9), or in the alternative that the Zoning Hearing Board's conclusion that he was not entitled to the variance was without merit.

Judge John E. Lavelle who conducted the hearing below limited his inquiry to that of whether Pohida had withdrawn his application at the February

[ 59 Pa. Commw. Page 26414]

, 1978 hearing, leaving nothing for the Zoning Hearing Board to decide and therefore nothing to appeal. Judge Lavelle, based on the description of Pohida's abrupt departure from the hearing, found that he had withdrawn his application, and that no decision of the matter was required of the Board. He dismissed the appeal. We agree with this determination.

Having withdrawn his appeal, Pohida may make a new application for a variance for a junkyard; and we are informed at oral argument that he has indeed now applied for a use of his property other than as a junkyard.

Order affirmed.

Order

And Now, this 27th day of May, 1981, the order of the Court of Common Pleas of Schuylkill County is affirmed.

Disposition

Affirmed.


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