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JOHN M. KOSTECKY v. JACK B. MATTERN AND ERNESTINE O. MATTERN (11/08/82)

decided: November 8, 1982.

JOHN M. KOSTECKY, JR., APPELLANT
v.
JACK B. MATTERN AND ERNESTINE O. MATTERN, HIS WIFE ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of John M. Kostecky, Jr. v. Jack B. Mattern and Ernestine O. Mattern, his wife, and The Zoning Board of the Borough of Lemoyne, No. 3422 Civil, 1980.

COUNSEL

Walter W. Wilt, Hepford, Swartz, Menaker and Wilt, for appellant.

Joseph P. Alexa, with him, Samuel L. Andes, Andes and Vaughn, for appellees.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Mencer did not participate in the decision in this case.

Author: Williams

[ 69 Pa. Commw. Page 576]

John M. Kostecky, Jr., has appealed from an order of the Court of Common Pleas of Cumberland County that affirmed a decision of the Zoning Hearing Board of the Borough of Lemoyne (Board). The decision of the Board, over a challenge by Kostecky, had upheld a grant of subdivision approval to Jack B. Mattern and his wife, Ernestine O. Mattern (Matterns), two of the appellees herein.

Appellant Kostecky and the Matterns are adjoining property owners on Cumberland Road in the Borough of Lemoyne. In March 1979, the Matterns had applied for a zoning variance to permit the erection of third dwelling on their property. A variance was sought because the Mattern property did not meet the dimensional requirements, under the Borough's zoning ordinance, for the additional structure. The variance application was denied by the Board.*fn1

After the denial of the variance, the Matterns began negotiations with the Borough of Lemoyne to

[ 69 Pa. Commw. Page 577]

    purchase a piece of ground in the Borough-owned park adjacent to the Mattern property.*fn2 In September 1979, the Matterns submitted to the Borough a contract under which they would buy a small, triangular piece of the Borough park for a purchase price of $1,443. The piece of ground to be conveyed contained 4,379.58 square feet. That piece, when added to the Matterns' existing property, would create a parcel of land capable of being subdivided for the construction of the third dwelling. In December 1979, the Lemoyne Borough Council approved the sale.*fn3

In January 1980, pursuant to a petition filed by the Matterns, the Court of Common Pleas of Cumberland County entered an order approving the Borough's sale of the parkland footage.*fn4

Following the judicial approval of the land sale, the Matterns had a registered surveyor prepare a subdivision plan.*fn5 The plan indicated the configuration of the Mattern property as it would look after the acquisition from the Borough, and as it would look after the Matterns subdivided their redefined parcel into two separate lots. The plan also contained an "Acquisition Sketch," which depicted the boundaries of the Matterns' original property and the boundaries of the triangular piece to be acquired

[ 69 Pa. Commw. Page 578]

    from the Borough. The plan did not, however, depict the Borough park in its entirety; and thus did not show the relationship of the triangular piece to the park as a whole.

The Matterns submitted their subdivision plan to the local authorities on or about February 18, 1980. The plan was approved by the Cumberland County Planning Commission on February 19, 1980; and by the Lemoyne Borough Planning Commission on February 21, 1980. On February 26, 1980, the President and the Secretary of the Lemoyne Borough Council executed an acknowledgment on the face of the Mattern ...


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