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Nowicki v. Zoning Hearing Board of Borough of Monaca

Commonwealth Court of Pennsylvania

May 6, 2014

Henry Nowicki and Barbara Nowicki, Husband and Wife
v.
The Zoning Hearing Board of the Borough of Monaca
v.
The Borough of Monaca, Appellant

 Argued November 12, 2013

Page 288

[Copyrighted Material Omitted]

Page 289

Appealed from No. 11726-2013. Common Pleas Court of the County of Beaver. Dohanich, J.

Richard Urick, Aliquippa, for appellant.

Albert A. Torrence, Beaver, for appellees Henry and Barbara Nowicki.

Joseph A. Askar, Beaver, for appellee Zoning Hearing Board of the Borough of Monaca.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge (P), HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 290

JAMES GARDNER COLINS, Senior Judge

The Borough of Monaca (Borough) brings this appeal of the Beaver County Court of Common Pleas (Trial Court) order that reversed the denial by the Zoning Hearing Board of the Borough of Monaca (ZHB) of an application for a use variance submitted by Henry and Barbara Nowicki (collectively the Nowickis). The Nowickis applied for the use variance in order to construct a single family dwelling in the Planned River-Oriented Development District (PROD) located in the Borough. We affirm.

The Nowickis purchased parcel number 34-003-0406.000 at 604 Atlantic Avenue in Monaca, Pennsylvania (Property). The Property is .176 acres or 7,666.56 square feet of land. (Land Survey, Reproduced Record (R.R.) at 135a.) Two days before the Sales Agreement to purchase the Property was executed, the Borough enacted Section 245-12 of the Borough Ordinance (Ordinance), which changed the zoning district within which the Property was located from the R-2, Single-Family and Two-Family Residential District to the PROD. (ZHB Opinion, Findings of Fact ¶ ¶ 9-10.) The stated purpose of Section 245-12 is:

to promote the private redevelopment of properties for higher residential use in an area of the Borough that has easy access to the river and the Borough's business district and to take advantage of the views of the river, the recreational opportunities afforded by the river and the Pump Station, as well as the shopping and services available within walking distance in the business district.

Ordinance § 254-12(A). Currently, twenty-two (22) single family residences exist in the PROD district and are located in the immediate vicinity of the Property. (July 13, 2011 Hearing Transcript (H.T.) at 17, R.R. at 53a.) As of January 1, 2010, no structure has existed on the Property; a residential dwelling that had been broken into six apartments was previously situated on the Property, but the dwelling fell into disrepair, was destroyed by a fire, and was subsequently demolished by the predecessor in interest to the Nowickis. (H.T. at 54-55, R.R. at 90a-91a.)

The Nowickis applied to the ZHB for a use variance in order to construct a single-family dwelling on the Property. Eight neighbors appeared in support of the application and representatives from the Borough appeared in opposition. ( See H.T., R.R. at 36a-107a.) The ZHB denied the application. The Nowickis appealed the ZHB's denial of a use variance for the Property to the Trial Court, arguing that the Ordinance was confiscatory and denied all economically viable use of the land. The ZHB argued that the Ordinance was not confiscatory because it permitted the Property to be used for both noncommercial and public recreation, and that the inability of the Nowickis to pursue a single-family ...


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