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BEECHAM ENTERPRISES v. ZONING HEARING BOARD KENNEDY TOWNSHIP AND MOTEL SIX (04/07/89)

decided: April 7, 1989.

BEECHAM ENTERPRISES, INC., APPELLANT
v.
ZONING HEARING BOARD OF KENNEDY TOWNSHIP AND MOTEL SIX, INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Beecham Enterprises, Inc. v. Zoning Hearing Board of Kennedy Township v. Motel Six, A Limited Partnership, No. S.A. 2131 of 1987.

COUNSEL

Joel P. Aaronson, Reed, Smith, Shaw & McClay, for appellant

Frederick A. Boehm, Goehring, Rutter & Boehm, for appellee, Motel Six, Inc.

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

Author: Narick

[ 125 Pa. Commw. Page 21]

Beecham Enterprises, Inc. (Beecham) appeals from an order of the Court of Common Pleas of Allegheny County which dismissed Beecham's appeal challenging the Kennedy Township Zoning Hearing Board's (Board's) grant of sign dimensional variances to Motel Six, Inc. (Motel Six), Beecham's immediate neighbor.

Motel Six is the owner of a four-acre parcel (Motel Six Property) located at the intersection of Beecham Drive and Kisow Drive in Kennedy Township, Allegheny

[ 125 Pa. Commw. Page 22]

County, Pennsylvania. Beecham owns a sixteen-acre parcel (Beecham Property) where its corporate headquarters are located and which is directly across Beecham Drive from the Motel Six Property.

Both the Motel Six Property and the Beecham Property are located in an R-4 zoning district, a district permitting a mix of residential and commercial uses.*fn1

On May 15, 1986, Motel Six filed an application with the Board seeking dimensional variances from the sign provisions of the Zoning Ordinance.*fn2 The variance hearing

[ 125 Pa. Commw. Page 23]

    was advertised in a local newspaper, but no notice of the hearing was posted on the Motel Six Property.*fn3 On July 24, 1986, the Board conducted a hearing (first hearing) in connection with the Motel Six variance application for two signs, including a 320 square foot sign, which is 30 times larger than normally allowed in an R-4 zoning district. The Board approved the requested variance and eight months later on March 18, 1987, Motel Six commenced installation of the signs.

[ 125 Pa. Commw. Page 24]

Eighteen days after installation of the signs, Beecham filed an appeal to common pleas court at SA 679 of 1987 (initial appeal) challenging the substantive validity of the Board's grant of the variance and seeking to void the Board's decision since the notice of the first hearing was not posted. Motel Six was served with Beecham's notice of appeal, but did not intervene as of right.*fn4 This appeal resulted in a consent order, whereby Beecham and the Board consented to remand the proceedings. The purpose of the remand was to conduct a hearing de novo relative to the variance application of Motel Six since the first hearing had been improperly noticed.

On September 3, 1987, at the remanded hearing (remand hearing) Motel Six again presented evidence as to the necessity of the variance. Beecham, now present at the remand hearing, presented testimony that the sign "significantly adversely impacted not only the value of Beecham's $12 million facility, but also its amenity and image critical to its use as a corporate headquarters given the business expectations of customers and employees alike."*fn5 (Brief at 22.) Beecham submitted that the variance authorizing the sign 30 times larger than permitted altered the essential character of the district where permitted uses include residences, schools and religious

[ 125 Pa. Commw. Page 25]

    institutions. No other interested property owners objected to the variance.

After the remand hearing, the Board again approved Motel Six's requested variance.*fn6 On September 28, 1987, Beecham appealed to the common pleas court at SA 2131 of 1987 the Board's order which again granted the variance. On February 5, 1988, by order of court, Motel Six's Petition to Intervene was granted. On March 26, 1988, the trial court, without taking additional evidence, dismissed Beecham's appeal at SA 2131 of 1987. This appeal then followed.

Our scope of review where a trial court took no additional evidence in reviewing a decision of a zoning hearing board is limited, as was the trial court, to a determination of whether the Board abused its discretion, or committed an error of law. Valley View Civic Association v. Zoning Hearing Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983); Lamb v. Zoning Hearing Board of Adjustment, Borough of Ambridge, 111 Pa. Commonwealth Ct. 534, 534 A.2d 577 (1987).

The issues before us are: 1) whether the statutory appeal period, after the first hearing, had expired; 2) whether Motel Six, by failing to intervene at the first appeal, waived its right to intervene at SA 2131; and 3) whether the trial court erroneously held that Motel Six had acquired vested rights ...


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