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BERNARD SCHULTZ ET AL. v. ZONING HEARING BOARD WEST WYOMING BOROUGH. JOHN MILAZZO (07/21/82)

decided: July 21, 1982.

BERNARD SCHULTZ ET AL.
v.
ZONING HEARING BOARD OF WEST WYOMING BOROUGH. JOHN MILAZZO, APPELLANT



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Bernard Schultz and Anna Schultz, his wife, Edward Yorina and Mary Ann Yorina, his wife v. Zoning Hearing Board of West Wyoming Borough, No. 239-C of 1980.

COUNSEL

J. Earl Langan, for appellant.

Robert T. Panowicz, with him Anthony B. Panaway, for appellees.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 67 Pa. Commw. Page 553]

The appellant, John Milazzo, appeals an order of the Court of Common Pleas of Luzerne County reversing

[ 67 Pa. Commw. Page 554]

    a decision of the Zoning Hearing Board of the Borough of West Wyoming to approve the issuance of a use permit to Meon Metal, Inc.*fn1

On June 25, 1979, the Borough's zoning officer issued a use permit to Meon Metal to operate a sheet metal manufacturing business on property owned by the appellant.*fn2 The zoning officer submitted the permit application to the Borough Council and it appears that the Council disapproved the application on August 13, 1979 at one of its regular meetings although the record does not reveal its reason for doing so. At a special meeting held on August 23, 1979, however, the Council reversed its previous action and approved the grant of the permit. A number of objectors, including the appellees here,*fn3 filed an appeal to the Borough's Zoning Hearing Board (Board) on September 15, 1979, challenging the issuance of the permit. Again the record is unclear, but it seems that at the time of the appeal there were no members then on the Board. On October 8, 1979 the Council appointed three persons to the Board which as then reconstituted held hearings and determined that the appeal had not been timely filed*fn4 and that, on the merits of their appeal, the objectors had not met their burden of proof. Upon

[ 67 Pa. Commw. Page 555]

    further appeal, the court below took additional evidence and found that the appeal had been timely filed and that the use permit, not having been properly issued, must be set aside. This appeal followed.

Section 915 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10915, provides:

No person shall be allowed to file any proceeding with the board later than thirty days after any application for development, preliminary or final, has been approved by an appropriate municipal officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given. If such person ...


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