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PETER VITALE ET AL. v. ZONING HEARING BOARD UPPER DARBY TOWNSHIP ET AL. NICHOLAS MICOZZIE (01/05/82)

decided: January 5, 1982.

PETER VITALE ET AL.
v.
ZONING HEARING BOARD OF UPPER DARBY TOWNSHIP ET AL. NICHOLAS MICOZZIE, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Peter Vitale, Anthony D'Antonio, Thomas Pinelli and John Trevisan, Co-Partners, trading as Lansdowne Towers Company v. Upper Darby Township Hearing Board, No. 79-6259.

COUNSEL

Joseph P. Mylotte, Curran, Mylotte, David & Fitzpatrick, for appellant.

Henry B. Fitzpatrick, Jr., Liebert, Short, Fitzpatrick & Lavin, for appellees.

President Judge Crumlish and Judges MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino dissents. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Macphail

[ 63 Pa. Commw. Page 606]

Nicholas Micozzie (Appellant) has appealed to this Court from an order of the Court of Common Pleas of Delaware County, which reversed the decision of the Zoning Hearing Board of Upper Darby Township (Board) and granted a variance to Appellees*fn1 for the construction of forty-four apartment units on a 3.21-acre tract.

The record discloses that the tract in question is located in an R-1 residential district which permits single family detached dwellings as the only permissible residential structure.*fn2 The tract is bounded on the south by a nursing home, on the east by Darby Creek and across the creek by the Mercy Catholic Medical Center, on the west by four single family dwellings, one of which is owned by Appellees, and on the north by a 200-unit apartment complex also owned by Appellees and developed pursuant to a use variance. The tract is landlocked and has as its primary topographical feature a 65-foot slope, down to Darby Creek at up to a 20% grade. The slope occurs over approximately 200 feet of the 420-foot east-west dimension of the property.

Appellees' application for a use variance was denied after two hearings before the Board on the grounds that Appellees failed to establish that the

[ 63 Pa. Commw. Page 607]

    variance requested was the minimum necessary to provide relief and that any unnecessary hardship was self-created since Appellees purchased the subject property knowing of its zoning restrictions. Appellees appealed to the court of common pleas which reversed, concluding that Appellees had established that unnecessary hardship existed under the R-1 zoning restrictions as a direct result of unique physical features of the land, that there was no self-created hardship, that Appellees need not establish that the variance requested was the minimum needed to afford relief and that the proposed apartments would not adversely affect the surrounding community.

In his appeal to this Court, Appellant contends that the Board acted within its discretion and in accordance with law in denying Appellees' variance application.

Before we address the merits of this appeal, however, we must respond to Appellees' renewed request that this appeal be quashed on the ground that Appellant lacks standing in this Court. Appellees previously filed a motion to quash in this matter which was denied, after oral argument, on April 30, 1980 by this opinion writer. It is a general rule that it is improper for a trial judge, absent new evidence, to overrule an interlocutory order by another judge of the same court in the same case. Commonwealth v. Tyson, 57 Pa. Commonwealth Ct. 569, 427 A.2d 283 (1981). We adopt the same rule with regard to pre-argument applications filed with this Court. In the interest of judicial economy and efficiency there must be a degree of finality to ...


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