Luskuski Appeal

Delaware County Court of Common Pleas

Luskuski Appeal

79 Pa. D. & C. 529, 1952 Pa. Dist. & Cnty. Dec. LEXIS 398

CourtPennsylvania Court of Common Pleas, Delaware County

DecidedJanuary 2, 1952

StatusPublished

This text of 79 Pa. D. & C. 529 (Luskuski Appeal) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Luskuski Appeal, 79 Pa. D. & C. 529, 1952 Pa. Dist. & Cnty. Dec. LEXIS 398 (Pa. Super. Ct. 1952).

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Opinion

Ervin, P. J.,

In the above matter an appeal from the decision of the Board of Adjustment of the Borough of Parkside was allowed and a writ of certiorari was issued directed to the board and commanding it within 20 days after service to certify to the court its entire record in this matter. Prom the record it would appear that appellants own a two-story brick store and apartment at 2901 Edgmont Avenue, Parkside, Delaware County, Pa.; that they presented a petition to the board of adjustment asking a special exception to permit the erection of a one-story addition to the business premises above mentioned; that after hearing before the board it was decided by the board to refuse the exception because of the provision in the zoning code forbidding the erection of buildings on Edgmont Avenue with a height of less than two full stories. This involves a question of law and no additional testimony is needed.

Our search reveals no Pennsylvania decision covering this question. Where the question has been presented and passed upon either directly or obliquely, it has uniformly been held that a grant of power to a municipality to zone its territory, or to regulate, control, or limit the height of buildings, does not constitute a grant of power to prescribe the minimum height of buildings. See article in 8 A.L.R. (2d), page 978. In the cases therein cited it was stated that the word [530]*530“limit”, in the statute, followed by the word “height” was used in the sense of abridge, confine, and restrict. The court concluded that the only power given to the municipality was that of fixing a height above which a building should not be erected. To prohibit the erection of buildings above a certain height does have a direct bearing on the safety from fire and other dangers and does promote the public health and welfare. A provision prohibiting one-story buildings, however, does not in any way promote the public safety, health or welfare.

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Ervin, P. J.,

In the above matter an appeal from the decision of the Board of Adjustment of the Borough of Parkside was allowed and a writ of certiorari was issued directed to the board and commanding it within 20 days after service to certify to the court its entire record in this matter. Prom the record it would appear that appellants own a two-story brick store and apartment at 2901 Edgmont Avenue, Parkside, Delaware County, Pa.; that they presented a petition to the board of adjustment asking a special exception to permit the erection of a one-story addition to the business premises above mentioned; that after hearing before the board it was decided by the board to refuse the exception because of the provision in the zoning code forbidding the erection of buildings on Edgmont Avenue with a height of less than two full stories. This involves a question of law and no additional testimony is needed.

Our search reveals no Pennsylvania decision covering this question. Where the question has been presented and passed upon either directly or obliquely, it has uniformly been held that a grant of power to a municipality to zone its territory, or to regulate, control, or limit the height of buildings, does not constitute a grant of power to prescribe the minimum height of buildings. See article in 8 A.L.R. (2d), page 978. In the cases therein cited it was stated that the word [530]*530“limit”, in the statute, followed by the word “height” was used in the sense of abridge, confine, and restrict. The court concluded that the only power given to the municipality was that of fixing a height above which a building should not be erected. To prohibit the erection of buildings above a certain height does have a direct bearing on the safety from fire and other dangers and does promote the public health and welfare. A provision prohibiting one-story buildings, however, does not in any way promote the public safety, health or welfare.

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Bluebook (online)

79 Pa. D. & C. 529, 1952 Pa. Dist. & Cnty. Dec. LEXIS 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luskuski-appeal-pactcompldelawa-1952.