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BOARD COMMISSIONERS TOWNSHIP ROBINSON v. SAMDOZ (11/17/81)

decided: November 17, 1981.

BOARD OF COMMISSIONERS OF THE TOWNSHIP OF ROBINSON, APPELLANT
v.
SAMDOZ, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Samdoz, Inc. v. Zoning Hearing Board of Robinson Township, No. S.A. 1189 of 1978.

COUNSEL

Fred E. Baxter, Jr., with him Jane D. Ressler, Gondelman, Baxter, Mansmann & McVerry, for appellant.

Bruce E. Dice, Zimmer & Dice, for appellee.

President Judge Crumlish, Jr. and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 62 Pa. Commw. Page 434]

Robinson Township appeals from an order of the Common Pleas Court of Allegheny County reversing the denial by the Robinson Township Zoning Hearing

[ 62 Pa. Commw. Page 435]

Board of a variance sought by the appellee, Samdoz, Inc.

In 1963 Samdoz purchased about 30 acres of land in Robinson Township located in a district zoned R-2 residential where essentially only single family residences are permitted uses. In 1971 the township amended its zoning ordinance so as to place 23 acres of the appellant's land in the I-1, light industrial district, with the balance of about seven acres remaining in the R-2 district. Samdoz sought a variance which would permit it to develop the whole of its 30 acre parcel as an office and warehouse complex, a permitted use in the I-1 district.

After an evidentiary hearing, the Robinson Township Zoning Hearing Board denied the variance. Samdoz appealed this order to the Allegheny County Court of Common Pleas where the case was submitted on the record developed before the Zoning Hearing Board to a court appointed referee. The referee recommended that the Board's action be reversed and the variance granted. The Court of Common Pleas adopted the referee's recommendation and ordered the variance to issue.

Samdoz has moved to quash this appeal on two grounds, first that the township has no standing to appeal to this court because not having been a party or intervening party in the proceedings before the zoning hearing board or in the court of common pleas, it lacks standing to bring this appeal. In Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commonwealth Ct. 296, 427 A.2d 776 (1981) this court propounded the rule that a municipality will have standing to bring a zoning appeal to this court only if it was a party or intervening party in the zoning appeal in the court of common pleas. Because this rule was there first propounded and was not clearly foreshadowed by prior case law, we provided that it

[ 62 Pa. Commw. Page 436]

    should have prospective effect only. Gilbert was decided April 7, 1981. This appeal was taken December 5, 1980, so that ...


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