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LOWER MERION TOWNSHIP v. 34 DERWEN ROAD (05/21/51)

May 21, 1951

LOWER MERION TOWNSHIP
v.
34 DERWEN ROAD, INC., APPELLANT



Appeal, No. 60, Jan. T., 1951, from decree of Court of Common Pleas of Montgomery County, Sept. T., 1948, No. 15, in case of Township of Lower Merion v. 34 Derwen Road, Inc., et al. Decree affirmed.

COUNSEL

Benjamin H. Hellman, with him Raymond Pearlstine, for appellants.

John E. Forsythe, Township Solicitor, with him Edmund B. Spaeth, Jr., and Wright, Mauck, Hawes & Spencer, for appellee.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Stearne

[ 367 Pa. Page 265]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This appeal is from a decree of the Court of Common Pleas of Montgomery County restraining defendants

[ 367 Pa. Page 266]

    from violation a zoning ordinance and an agreement with Lower Merion Township of that county.

Appellant, 34 Derwen Road, Incorporated, is the present owner of the real estate, while the additional named appellants are the tenants and occupants. The dwelling consists of a large mansion house with a garage.

Under the terms of the Township Zoning Ordinance of 1927 there was a prohibition against the use of the premises for multiple residence or apartment purposes. On application the Superintendent of Building Inspection ruled that the use of the property as a permissive non-conforming use was proper. On appeal the Board of Adjustment reversed this ruling whereupon appellant's predecessor in title appealed to the Court of Common Pleas of Montgomery County.

The learned chancellor found as a fact: "On July 1, 1946, the plaintiff township entered into a written agreement under seal with Gladys M. Storey, the then legal owner of the premises, and Irene Berger, the then equitable owner thereof, that in consideration of the withdrawal of her appeal, plaintiff would permit the premises to be used as a multiple dwelling for two years from July 1, 1946, provided that any apartment vacated before the two year period, should remain vacant, and should not be re-leased after eighteen months from the date of the agreement; and further provided that at the end of the two year period the premises should revert to a single family dwelling or use permitted by plaintiff's Zoning Ordinances in R-3 Residence District.

"This written agreement of July 1, 1946, was made binding on the heirs, executors, administrators, successors and assigns of the parties, and was duly recorded on August 3, 1946, in the office for the recording of deeds in and for the ...


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