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SENECA MINERAL COMPANY v. MCKEAN TOWNSHIP ZONING HEARING BOARD (03/23/89)

decided: March 23, 1989.

SENECA MINERAL COMPANY, INC., APPELLANT
v.
MCKEAN TOWNSHIP ZONING HEARING BOARD, APPELLEE



Appeal from the order of the Court of Common Pleas of Erie County in the case of Seneca Mineral Company, Inc. v. McKean Township Zoning Hearing Board and James D. McDonald, Jr. and Mary Helen McDonald, No. 4253-A-1987.

COUNSEL

Eugene J. Brew, Jr., McClure & Miller, for appellant.

Thomas E. Kuhn, Gifford, Lay, Johnson & Ridge, for appellee.

Daniel J. Pastore, The McDonald Group, for intervenor/appellee, James D. McDonald, Jr. and Mary Helen McDonald.

Judges Barry, McGinley and Smith, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 124 Pa. Commw. Page 391]

Seneca Mineral Company, Inc. (the tenant) appeals from an order of the Court of Common Pleas of Erie County which affirmed a decision of the Zoning Hearing Board of McKean Township (Board). That decision reversed a decision of the McKean Township Zoning Administrator to issue to the tenant a building permit which allowed for the construction of a one-story garage.

Tenant leases subject property at 7200 Grubb Road which is currently zoned as R-2 (Suburban Residential). It had been using the property for the purpose of pumping, storing and distributing salt brine. That use was permitted in the R-2 District only as a legally nonconforming use. On May 6, 1987, tenant applied for a building permit and certificate of occupancy which would allow for the construction of a one story garage. The permit and certificate were granted that same day. No notice of their issuance was provided to any other person.

Tenant began work on the construction project on or about May 13, 1987. On or about June 17, 1987, James D. McDonald, Jr., (referred hereinafter together with his wife, Mary Helen McDonald, as "the protestants"), observed construction of the garage on the subject property. Subsequently he requested and received from the Zoning Administrator, on June 23, 1987, a copy of the building permit and certificate of occupancy issued to the tenant. On July 13, 1987, protestants filed an appeal from the Zoning Administrator's decision to issue the permit and certificate to the tenant. It was their contention that the garage constituted an expansion of and/or change in the tenant's nonconforming use and that the Zoning Administrator lacked the power to issue a building permit and certificate of occupancy which would allow for the expansion of and/or change in a nonconforming use. Following a hearing on the matter, the Board declared

[ 124 Pa. Commw. Page 392]

    that the permit issued by the Zoning Administrator was null and void. The tenant then filed an appeal to the court of common pleas which, without taking additional evidence, affirmed the Board's decision. This appeal followed.

When a trial court takes no additional evidence in reviewing the decision of a zoning hearing board, this Court's scope of review is limited to determining whether the zoning hearing board has committed a manifest abuse of discretion or error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). An abuse of discretion can be found only if the Board's findings are not supported by substantial evidence. Id.

The tenant argues that the Board erred in concluding that protestants' appeal was timely filed. It contends that the Board should have found that protestants had constructive notice of the construction activities on the subject property within the thirty day period that followed the issuance of the building permit on May 6, 1987. The tenant urges us to conclude that, therefore, because protestants did not file their appeal within that thirty day period, their appeal was untimely.

Under Section 915 of the Municipal Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10915, an appeal from the decision of a zoning officer to approve an application for development must be filed within thirty days after such approval has been granted unless the person seeking to appeal that decision alleges and proves that he had no notice, knowledge or reason to believe that such approval had been given. The effect of this provision is to permit a protestant to file an appeal challenging the issuance of a ...


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