Schatz v. Zoning Hearing Bd. of Upper Dublin Tp.

• Decision Date: 18 August 1975
• Citation: 343 A.2d 90,21 Pa.Cmwlth. 112
• Parties: Gerald SCHATZ and Wordsworth Academy v. The ZONING HEARING BOARD OF UPPER DUBLIN TOWNSHIP. Appeal of UPPER DUBLIN TOWNSHIP.
• Court: Pennsylvania Commonwealth Court

Page 90

343 A.2d 90

21 Pa.Cmwlth. 112

Gerald SCHATZ and Wordsworth Academy v. The ZONING HEARING BOARD OF UPPER DUBLIN TOWNSHIP Appeal of UPPER DUBLIN TOWNSHIP.

Commonwealth Court of Pennsylvania.

Argued April 2, 1975.

Decided Aug. 18, 1975.

[21 Pa.Cmwlth. 113] John P. Knox, Ambler, for appellee.

James L. Hollinger, Smith, Aker, Grossman, Hollinger & Jenkins, Norristown, for appellant.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

BLATT, Judge.

This case is before us on the appellee's motion to quash an appeal taken by Upper Dublin Township (Township) from an order of the Court of Common Pleas of Montgomery County.

On January 18, 1974, Gerald Schatz and Wordsworth Academy (Academy) of which Schatz is the director, filed an application for a zoning permit with the Township's Zoning Hearing Board (Board). They thereby sought interpretation of a prior 1969 order issued by the Zoning Board which granted Schatz a special exception to use his property for a school. Certain conditions had been attached to the grant of that special exception among which was a requirement that the property's private driveway into Wenner Way, a public road, be a maximum of 18 feet in width and that it be provided with a '6-feet high chain link fence and double acting gate.' Another driveway which fronted on Pennsylvania Avenue was intended to be the main entrance. As construction of the Academy progressed pursuant to the grant of that special exception, a further question arose as to the extent of the use which would be permitted along the private driveway on Wenner Way, and it was that controversy which prompted the filing of the application of January, 1974. On April 3, 1974 the Board issued an order holding essentially that use of the private driveway connecting with Wenner Way should be limited to emergencies or exigent circumstances. Schatz and the Academy appealed this decision to the Court of Common Pleas which reversed the Board on August 26, 1974 and ordered that Schatz and the Academy be allowed to use the driveway connecting with Wenner Way free of the conditions which limited its use to emergencies.

The Township intervened before the lower court and has now appealed to this Court. The appellee's motion to quash, however, asserts that the Township's appeal is in reality being taken on behalf of certain private citizens who wish to prevent the unrestricted use of the Wenner Way entrance. As admitted by the Township in its answer to the motion to quash, the Township's Board of Commissioners met on September 3, 1974, eight days after the lower court decision, and, as a result of that meeting, the President of the Board of Commissioners sent the following letter to certain residents of Wenner Way:

'Dear Resident of Wenner Way:

As you know, Wordsworth Academy appealed the decision of Upper Dublin's Zoning Hearing Board restricting the use of the Wenner Way entrance to emergencies only.

On August 26, 1974, the Court of Common Pleas of Montgomery County reversed the decision and by its order the Academy can use Wenner Way without the conditions imposed by our Board.

While this is regretful, the Commissioners do not feel it would be proper to spend taxpayers' money to appeal the decision to the Commonwealth Court of Pennsylvania. Out solicitor, while not agreeing with the findings of the Judge, does not think the higher Court would be inclined to render an adverse decision. In addition, it appears, despite the decision, that...