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THOMAS BABYAK ET AL. v. ZONING HEARING BOARD WASHINGTON TOWNSHIP (04/11/88)

decided: April 11, 1988.

THOMAS BABYAK ET AL.
v.
ZONING HEARING BOARD OF WASHINGTON TOWNSHIP, PENNSYLVANIA ET AL. DAVID EDWARDS AND ANN EDWARDS, H/W, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lehigh County, in case of Thomas Babyak and Ceseria Babyak, Husband and Wife, and Carl Muthard and Dorothy Muthard, Husband and Wife v. The Zoning Hearing Board of Washington Township, No. 86-C-256.

COUNSEL

Timothy D. Charlesworth, Fitzpatrick and Associates, for appellants.

James B. Martin, Butz, Hudders, Tallman, Stevens & Johnson, for appellees.

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

Author: Palladino

[ 115 Pa. Commw. Page 323]

David and Ann Edwards (Appellants) appeal from an order of the Court of Common Pleas of Lehigh County reversing the decision of Zoning Hearing Board of Washington Township (Board) to grant Appellants' application for a variance to operate an auto repair shop and have a state auto inspection station in an existing garage on their property.

Appellants own approximately 3 1/2 acres of property located in an agricultural-business (AB) district. Appellants live in a residence located on the property. Appellants built a steel pole garage on the property. Shortly after the garage's construction, Appellants filed an application for a variance to use the garage as an auto repair shop and an auto inspection station. The Township zoning officer denied the request. Appellants appealed to the Board.

A public hearing on Appellants' application was held on January 7, 1986. David Edwards testified as to the conditions on his property which he believed would establish the necessary requirements for a variance, found in section 830.4 of the Township's zoning ordinance and patterned on section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968,

[ 115 Pa. Commw. Page 324]

P.L. 805, as amended, 53 P.S. ยง 10912. A number of neighboring landowners testified in opposition to the application, stating concerns about lowered property values, increased noise and junk.

At the conclusion of the meeting, the Board voted 2-1 to grant the variance subject to three conditions. These conditions were: (1) the hours of business limited to 8 AM to 6 PM; (2) no more than 3 vehicles other than Appellants' own currently licensed vehicle, be kept on the property; and (3) applicable DER regulations must be complied with if any body work or painting is performed. Thomas and Ceseria Babyak and Carl and Dorothy Muthard (Neighbors) appealed the Board's order to the trial court on February 4, 1986.

The trial court took no additional evidence and concluded that the Board erred as a matter of law in determining that Appellants had satisfied the requirement of section 830.4(c) of the Township's zoning ordinance. Section 830.4(c) requires that the conditions of Appellants' property which prevent them from developing it in conformity with the zoning ordinance not be created by Appellants. The trial court decision was handed down on December 11, 1986 and docketed on December 12, 1986.

Appellants did not participate before the trial court. On February 5, 1987, Appellants filed a "Petition to Intervene and to Stay Action by Washington Township." In their petition Appellants alleged: (1) the Neighbors advised them that they had discontinued their appeal; (2) Appellants were not provided with a copy of the trial court's decision until January 13, 1987; (3) David Edwards was arrested for violating the zoning ordinance on January 26, 1987; (4) Appellants were not represented by counsel until January 28, 1987; and (5) Appellants seek to intervene for ...


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