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KATHERINE BOGUSH v. ZONING HEARING BOARD BOROUGH COPLAY (12/17/81)

decided: December 17, 1981.

KATHERINE BOGUSH, A/K/A CATHERINE BOGUSH, APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF COPLAY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Katherine Bogush, a/k/a Catherine Bogush v. Zoning Hearing Board of The Borough of Coplay, No. 80-C-980.

COUNSEL

James G. Kellar, for appellant.

James C. Lanshe, Jr., Lanshe, Lanshe and Lanshe, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 63 Pa. Commw. Page 281]

Katherine Bogush has appealed from an order of the Court of Common Pleas of Lehigh County affirming the action of the Zoning Hearing Board of the Borough of Coplay rejecting her request for a variance or other relief that would permit her to construct on her dwelling lot a second single family detached dwelling in contravention of the local zoning and subdivision requirements. We affirm.

The facts are not in dispute. The appellant has owned for some forty years a parcel of residentially zoned land, less than one-third of an acre in area, on Seventh Street in Coplay, Pennsylvania. The appellant's residence, a single family detached dwelling, is located on this lot. In 1971 the appellant's son applied for and was granted a building permit for a second structure, denominated, as it developed disingenuously, only as a "home" to be built on the appellant's land notwithstanding the fact that no subdivision of the lot had been requested or approved.

Thereafter the appellant's son commenced construction of a so-called "twin home" consisting of two semi-detached dwellings. It is conceded that twin homes are not a permitted use in the zoning district in which the appellant's land is located. When it became aware of the nature and object of the construction activities, the Borough revoked the building permit and sought and was granted, on July 13, 1971, permanent injunctive relief to prevent further construction. At about this same time the borough, by the filing of a Declaration of Taking, condemned a portion of the appellant's land, including approximately one-half of the partially completed twin home, for the purpose of constructing an alley to improve access to an adjacent athletic field. A Board of Viewers was appointed and, in August, 1976, following the dismantling by the appellant's son of the offending portion of the structure,

[ 63 Pa. Commw. Page 282]

    the appellant was awarded $8,000.00 as compensation for the taking.

In 1980 the appellant applied to the borough zoning officer for a building permit necessary to commence further construction of the twin home which, in the aftermath of its partial destruction, was proposed to be completed as a single family detached dwelling. The application was denied on three grounds; the failure of the appellant to obtain prior subdivision approval, the insufficiency of the total area of the appellant's land to permit subdivision into two conforming lots if subdivision were requested, and the proposed improvement's violation of the side yard setback requirements.

The appellant appealed from this decision and requested of the zoning hearing board a variance to permit the desired construction. A public hearing was conducted by the board at which the appellant and her son testified and the appellant's counsel and the borough solicitor engaged in an extensive colloquy as to whether the local zoning and subdivision ordinances, which have not been included in the record certified to us, permit in the absence of subdivision approval the construction on a single lot of two otherwise conforming detached dwellings. Following the hearing the board, in a written decision, denied the request for a variance on the ground that no unnecessary hardship had been shown by the appellant. The court of common pleas affirmed the order of the board without taking additional testimony and this appeal followed.

Two issues are presented for our consideration. The appellant first argues that she acquired at the time of the issuance, in 1971, of the original building permit, a vested right to build the structure now proposed. Alternatively it is ...


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