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APPEAL BURTON & SANDRA IZES FROM FALLS TOWNSHIP ZONING HEARING BOARD. TOWNSHIP FALLS (07/19/83)

decided: July 19, 1983.

IN RE: APPEAL OF BURTON & SANDRA IZES FROM THE FALLS TOWNSHIP ZONING HEARING BOARD. TOWNSHIP OF FALLS, APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in the case of In Re: Appeal of Burton and Sandra Izes from the Falls Township Zoning Hearing Board, No. 81-02044.

COUNSEL

Samuel M. Smpes, for appellant.

Allen A. Pechter, for appellees.

Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 75 Pa. Commw. Page 529]

The Township of Falls (Township) appeals here from an order of the Court of Common Pleas of Bucks County reversing a decision of the Falls Township Zoning Hearing Board (Board) denying a validity variance requested by Burton and Sandra Izes (Appellees). We reverse.

On December 11, 1979, Appellees purchased a 1.13 acre lot on the north side of Route 1 in an area of the Township zoned LI-Light Industrial. The Township subsequently initiated an equity action*fn1 against

[ 75 Pa. Commw. Page 530]

Appellees to enjoin them from operating a used car business on this property, a use not permitted in LI zones, and in response Appellees filed a request for a validity variance with the Board pursuant to the provisions of Section 1004 of the Pennsylvania Municipalities Planning Code (MPC),*fn2 51 P.S. § 11004, alleging (1) that the Township's zoning ordinance and map was "irrational, arbitrary, and discriminatory in classifying the subject property LI-Light Industrial," (2) that the use of Route 1 as a boundary between the Township's LI zone and other zones located to the south of Route 1 was irrational, (3) that there was no rational distinction made between uses permitted on Appellees' property and uses permitted on other properties located in the Township's LI zone, and (4) that "[t]he restriction against [Appellees'] proposed use of the land, under the circumstances, constitutes a de facto establishment of a 'special' or 'spot' zone." Following two hearings on this application the Board issued a decision upholding the validity of its zoning ordinance. Upon a further appeal, however, the court of common pleas reversed concluding that since there were other nonconforming uses located in the Township's LI district, and since commercial uses were permitted in zoning districts located on the south side of Route 1, the failure to permit a commercial use on Appellees' property constituted "a classic case of spot zoning." The Township subsequently filed a Notice of Appeal to this Court, and in response the Appellees filed a Motion

[ 75 Pa. Commw. Page 531]

    to Quash. Both the Township's appeal and the Appellees' Motion to Quash are currently before us.

Before this Court, Appellees initially allege that the Township's appeal should be quashed since the Township was not a party to the proceedings below. We disagree.

In Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commonwealth Ct. 296, 427 A.2d 776 (1981), we rejected an argument, advanced by a municipality, that Section 908(3) of the MPC, 53 P.S. § 10908(3), automatically makes municipalities parties to zoning appeals brought from the decisions of zoning hearing boards. Instead, we concluded that municipalities, like individuals, must formally intervene in ...


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