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NICHOLAS S. VACCA AND JENNIE C. VACCA v. ZONING HEARING BOARD BOROUGH DORMONT ET AL. (05/02/84)

decided: May 2, 1984.

NICHOLAS S. VACCA AND JENNIE C. VACCA, HIS WIFE, APPELLANTS
v.
THE ZONING HEARING BOARD OF THE BOROUGH OF DORMONT ET AL., APPELLEES



Appeal from the Orders of the Court of Common Pleas of Allegheny County in case of Nicholas S. Vacca and Jennie C. Vacca v. The Zoning Hearing Board of the Borough of Dormont v. Borough of Dormont and Mount Lebanon United Methodist Church, Nos. SA 442 of 1980 and 646 of 1979.

COUNSEL

George H. Hoffman, for appellants.

Phillip D. Paull, with him, Jack W. Plowman, Plowman and Spiegel, for appellees.

Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 82 Pa. Commw. Page 193]

Nicholas and Jennie Vacca appeal an order of the Court of Common Pleas of Allegheny County which affirmed the Dormont Borough Zoning Hearing Board's denial of their application for a use variance.

We must determine*fn1 whether the board failed to render a timely decision and to give prompt notification of it to the applicant, and whether the court correctly concluded that the applicants did not carry their burden of proving unnecessary hardship.

[ 82 Pa. Commw. Page 194]

The property, a lot at 3315 West Liberty Avenue, contains a two-story building designed as a single-family home. It is located in an R-1A zone which permits single-family residences only.

In February, 1979, Fred Gualtieri purchased the property for $42,900 for investment purposes. Shortly thereafter he applied for a variance to permit commercial use of the property. The Dormont Zoning Hearing Board denied his request and Gualtieri appealed to the Court of Common Pleas of Allegheny County.

On October 31, 1979, Gualtieri sold the property to Nicholas and Jennie Vacca for $50,000. The Vaccas also applied for a use variance, and the final board hearing was held on February 21, 1980. On April 3, 1980, the borough secretary mailed to the Vaccas the board's decision which was dated April 1, 1980, but was not signed. The members of the zoning hearing board signed the decision on April 17, 1980, and the Vaccas filed a notice of appeal with the Common Pleas Court of Allegheny County on April 30, 1980. The board received the court's certiorari on May 3, 1980, and returned its record on June 16, 1980.

The court ordered the Gualtieri and Vacca appeals consolidated, and a court-appointed referee heard the case on July 8, 1980. On December 11, 1981, the referee filed his proposed adjudication affirming the denial. This appeal is from the court's adoption of the referee's decision.

The Vaccas first argue that their appeal should be sustained because the Dormont Zoning Hearing Board did not comply with various procedural provisions of the Pennsylvania Municipalities Planning Code.*fn2 They initially claim that the board did not render a

[ 82 Pa. Commw. Page 195]

    timely decision as required by section 908(9) of the Code ...


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