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SAMUEL LEOPARDI AND GEORGIA LEOPARDI (10/15/87)

decided: October 15, 1987.

IN RE SAMUEL LEOPARDI AND GEORGIA LEOPARDI, HIS WIFE. APPEAL OF JAMES BARNESS AND LINDA BARNESS


Appeal from the Order of the Commonwealth Court entered August 5, 1985 at No. 3189 C.D. 1982, affirming the Order of the Court of Common Pleas of Beaver County, Civil Division, entered November 17, 1982, at No. 2034 of 1981. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Mcdermott

[ 516 Pa. Page 117]

OPINION

Appellants, James and Linda Barness, appeal from an order of the Commonwealth Court, 90 Pa. Commw. 616, 496 A.2d 867 which affirmed an order of the Court of Common Pleas of Beaver County. The latter court had reversed the grant of a variance by the Harmony Township Zoning Hearing Board. The variance would have permitted appellants to construct a two-story addition to their residence, consisting of a two-car garage on the ground level, and two rooms and a bath on the upper floor. Their plan of construction did not conform to the requirements of the town-ship zoning ordinance in that it did not allow a thirty foot setback from the front property line.

Appellants originally applied to the township building inspector for a building permit, but were denied because of the setback deficiency. They next applied to the Township Zoning Hearing Board (Board) for a variance from the ordinance requirement. Following two hearings, at which there was no opposition, the Board granted a variance based on a finding of unnecessary hardship. This occurred on September 8, 1981. Almost immediately appellants began construction of the addition. On October 6, 1981, the construction all but completed, appellants' next-door neighbors, Samuel and Georgia Leopardi, timely filed an appeal of the Board's action in the Court of Common Pleas of Beaver County. Pursuant to an order of that court, on April 29, 1982, the Board conducted a transcribed hearing on the matter. See 53 P.S. ยง 10908(7).*fn1 The Leopardis were present at the proceeding and presented their opposition to the variance. On May 28, 1982, the Board issued an opinion affirming its original decision. On October 19,

[ 516 Pa. Page 1181982]

, the court of common pleas conducted its own hearing. Subsequently, it issued the following order:

AND NOW, this 17th day of November 1982, the decision of the Harmony Township Zoning Hearing Board granting a variance to James and Linda Barness to build a 24' X 26' garage and room addition to their home at 915 Highview Avenue, Harmony Township, is reversed.

The property owners are hereby granted until June 30, 1983 to either (1) reduce the size of the addition so as to bring it into conformance with the existing front yard requirements of the Harmony Township Zoning Ordinance, or (2) remove the addition to another location on the property which conforms with the Zoning Ordinance, or if this is not feasible, remove the addition entirely from the property, or (3) secure releases from all property owners in the 900 block of Highview Avenue for the existing violation of the Harmony Township Ordinance.

In addition, record costs of the proceedings are hereby placed on James and Linda Barness.

Slip Op. Court of Common Pleas of Beaver County, No. 2034 of 1981, p. 7 (November 17, 1982).

Appellants appealed to the Commonwealth Court. A panel of that court, in a two-to-one decision, affirmed the order of the common pleas court in its entirety. In re Samuel Leopardi and Georgia Leopardi, his wife, 90 Pa. Commw. 616, 496 A.2d 867 (1985). The majority of the Commonwealth Court determined that the order in question was properly within the powers conferred on the Board in the enabling statute and the local zoning ordinance. It then concluded that the trial court was empowered to exercise the power of the Board in granting the tear-down remedy.

Appellants petitioned this court and we granted allocatur to consider whether the court of common pleas exceeded its authority in directing appellants to tear down all or so much of their garage as violated ...


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