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MOSSIDE ASSOCIATES v. ZONING HEARING BOARD MUNICIPALITY MONROEVILLE ET AL. MILAN KLUKO ET AL. (12/28/82)

decided: December 28, 1982.

MOSSIDE ASSOCIATES, LTD.
v.
ZONING HEARING BOARD OF THE MUNICIPALITY OF MONROEVILLE ET AL. MILAN KLUKO ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Mosside Associates, Ltd. v. Zoning Hearing Board of the Municipality of Monroeville, Pennsylvania, No. SA 1505 of 1981.

COUNSEL

Richard L. Rosenzweig, for appellants.

Vincent C. Murovich, with him Marjorie A. Schlutz, for appellee.

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

Author: Macphail

[ 70 Pa. Commw. Page 556]

Milan Kluko, Jack Backus and the Planning Commission of the Municipality of Monroeville, Appellants)*fn1 have appealed from an order of the Court of Common Pleas of Allegheny County which reversed

[ 70 Pa. Commw. Page 557]

    a decision of the Zoning Hearing Board of Monroeville (Board) and reinstated the approval of a conditional use application by the Monroeville Municipal Council (Council). We affirm.

The conditional use application which gave rise to the proceedings below was filed by Mosside Associates, Ltd. (Mosside) on or about July 8, 1981 and proposes the construction of a motel, office building and parking garage on property owned by Mosside in Monroeville. Pursuant to the Monroeville zoning ordinance and Section 603 of the Pennsylvania Municipalities Planning Code (MPC),*fn2 the application was referred to the Planning Commission which recommended that Council deny the application. Council subsequently requested further review of the application and accompanying plans by its two planning agencies -- the Monroeville Planning Department and the Planning Commission. The Council's request resulted in a recommendation by the Planning Department that the application be granted subject to three conditions. The Planning Commission, however, reaffirmed its recommendation that the application be denied by Council. On September 9, 1981, Council approved the conditional use application subject to thirteen conditions.

At issue here are two consolidated appeals filed with the Board by the Planning Commission and its members, as individuals. The appeal by the Planning

[ 70 Pa. Commw. Page 558]

Commission purports to challenge the interpretation by the "zoning officer" of several ordinance provisions pertinent to the conditional use application. The appeal filed by the individual members of the Planning Commission challenges both the "zoning officer's" interpretation and Council's ultimate decision to approve the application. The Board consolidated the appeals and, after three hearings, concluded that the "zoning officer" had misinterpreted the zoning ordinance and declared Council's approval of the application to be void. On appeal, the court of common pleas reversed the Board's decision concluding, inter alia, that the Board lacked jurisdiction over the consolidated appeal. The instant appeal followed.

Several issues have been raised in this appeal regarding procedural matters and the standing of Appellants to initiate the challenges before the Board. We first address Appellants' contention that Mosside failed to perfect its appeal to the court of common pleas from the Board's decision regarding the Planning Commission's challenge. Appellants' contention is based on the theory that the appeals to the Board by the Planning Commission and its individual members remained separate appeals throughout the proceedings before the Board, and that the notice of appeal filed with the common pleas court indicated that the Board's decision regarding only one of the appeals was being challenged. We disagree. At the hearing before the Board on November 4, 1981 a motion was made and carried by the Board to "consolidate the two applications." (Emphasis ...


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