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STEPHEN C. OLSOVSKY AND ELIZABETH OLSOVSKY v. ZONING HEARING BOARD CITY ALLENTOWN AND WILLIAM E. CAPKOVIC (12/12/85)

decided: December 12, 1985.

STEPHEN C. OLSOVSKY AND ELIZABETH OLSOVSKY, APPELLANTS
v.
ZONING HEARING BOARD OF THE CITY OF ALLENTOWN AND WILLIAM E. CAPKOVIC, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Stephen C. Olsovsky and Elizabeth H. Olsovsky v. Zoning Hearing Board of the City of Allentown and William E. Capkovic, Donald E. Montoney, Herman W. Hartzell and Fred Shareff and Fred Shareff and Thermal Seal Window Corporation, Inc., No. 84-C-1435.

COUNSEL

Richard J. Orloski, Calnan & Orloski, P.C., for appellants.

James G. Kellar, with him, Emil Kantra and Joseph Rosenfeld, Kellar & Kantra, for intervenors, Fred Shareff and Thermal Seal Window Corporation, Inc.

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

Author: Craig

[ 93 Pa. Commw. Page 443]

Objectors Stephen C. and Elizabeth H. Olsovsky appeal from an order of the Court of Common Pleas of Lehigh County which, affirming the decision of the Zoning Hearing Board of the City of Allentown, granted the application of Thermal Seal Window Corporation, Inc., and Fred Shareff (landowner) to construct

[ 93 Pa. Commw. Page 444]

    a second floor addition to an existing one-story building located adjacent to the objectors' residence.

The landowner and Thermal Seal filed the application to construct the second floor addition under section 2803(2) of the Allentown Zoning Ordinance which pertains to additions or enlargements of non-conforming structures:

A non-conforming structure may be reasonably enlarged or extended to provide for natural expansion thereof to accommodate increased trade, business or industry, provided that such enlargement or extension shall not in any case be detrimental to or tend to alter the character of the neighborhood and that a permit therefore [sic] be granted by the Zoning Hearing Board.

Because that ordinance provision empowers the board to grant an approval pursuant to a stated standard, it constitutes a special exception provision under section 913 of the Pennsylvania Municipalities Planning Code.*fn1 "The important characteristic of a special exception is that it is a conditionally permitted use, legislatively allowed if the standards are met." Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 527, 410 A.2d 909, 911 (1980).

The issue is whether the board abused its discretion or committed an error of law when it decided that the requested second floor ...


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