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ALBERT E. NICHOLLS v. ZONING BOARD ADJUSTMENT BOROUGH JERMYN ET AL. ALLIED SERVICES FOR HANDICAPPED (02/10/84)

decided: February 10, 1984.

ALBERT E. NICHOLLS, JR. AND CATHERINE NICHOLLS, HIS WIFE
v.
THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF JERMYN ET AL. ALLIED SERVICES FOR THE HANDICAPPED, INC., APPELLANT. ALLIED SERVICES FOR THE HANDICAPPED, INC. V. ZONING BOARD OF ADJUSTMENT OF JERMYN BOROUGH ET AL. ALBERT E. NICHOLLS AND CATHERINE NICHOLLS, APPELLANTS



Appeals from the Orders of the Court of Common Pleas of Lackawanna County in the case of Albert E. Nicholls, Jr. and Catherine Nicholls, his wife v. The Zoning Board of Adjustment of the Borough of Jermyn and Allied Services for the Handicapped, Inc. No. 82-Civil-2209, and in the case of Allied Services for the Handicapped, Inc. v. Zoning Board of Adjustment of Jermyn Borough and Albert E. Nicholls and Catherine Nicholls, No. 81-Civil-7221.

COUNSEL

John R. O'Brien, Oliver, Price and Rhodes, for appellant/appellee, Allied SErvices for the Handicapped, Inc.

W. Boyd Hughes, with him Lawrence J. Moran, Hughes, Nicholls, Moran & Lucas, for appellee/appellant, Albert E. Nicholls, Jr. and Catherine Nicholls, his wife.

Gordon B. Simmons, Hendleman, Kreder, O'Connell & Brooks, for The Zoning Board of Adjustment of the Borough of Jermyn et al.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 80 Pa. Commw. Page 249]

Consolidated for argument and disposition is the appeal of Allied Services for the Handicapped, Inc. (docketed at No. 2388 C.D. 1982) from an order of the Court of Common Pleas of Lackawanna County, and the appeal of Albert E. Nicholls, Jr. and Catherine Nicholls (docketed at No. 32 T.D. 1983) from another order of the common pleas court.

No. 32 T.D. 1983

The Nicholls appeal here from a common pleas court order denying their request for counsel fees sought under Section 2503 of the Judicial Code, 42 Pa. C.S. ยง 2503, which permits an award of counsel fees in denominated circumstances.

In April, 1981, the Borough of Jermyn (Borough) invited sealed bids for the purchase of the Borough's former municipal building. Bid acceptance was expressly conditioned upon the Borough's Zoning Board of Adjustment's (Board) approval of the intended use. Seeking to employ the building as a residence for supervised, emotionally disturbed adults, Allied Services for the Handicapped, Inc. (Allied) subsequently purchased the property after receiving a special use*fn1 zoning permit from the Borough's zoning inspector. The Nicholls, neighboring landowners,

[ 80 Pa. Commw. Page 250]

    appealed to the Board challenging the issuance of the zoning permit without the requisite Board action.*fn2

At the Board hearing, the zoning inspector's uncontroverted testimony established that (1) Allied's proposed use of the Borough building was not permitted in the residentially zoned district within which the property was situate except by application for a special use permit; and (2) the zoning inspector, while cognizant of the requirements of Board hearing and approval, issued a special use permit to Allied without prior Board action (at the urging of a Borough councilman) because the Borough needed the purchase money and Allied wanted the property. Upon the Board's revocation of the zoning permit, Allied appealed to the common pleas court asserting that the revocation decision was improper because Allied had acquired ...


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