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DOOLING'S WINDY HILL v. SPRINGFIELD TOWNSHIP ZONING BOARD ADJUSTMENT (06/24/52)

June 24, 1952

DOOLING'S WINDY HILL, INC.,
v.
SPRINGFIELD TOWNSHIP ZONING BOARD OF ADJUSTMENT, APPELLANT



Appeals, Nos. 19, 20 and 22, Jan. T., 1952, from decree of Court of Common Pleas of Delaware County, June T., 1950, No. 737, in case of Dooling's Windy Hill, Inc., v. Zoning Board of Adjustment of Springfield Township et al. Order affirmed.

COUNSEL

Edward F. Hitchcock and A. Sidney Johnson, Jr., with them Edward H. Bryant, Jr., Clarence G. Myers, Read Rocap, Jr., Lutz, Fronefield, Warner & Bryant, Duane, Morris & Heckscher, Rocap & Rocap, and Butler, Beatty, Greer & Johnson, for appellants.

C. William Kraft, Jr., with him Joseph C. Henry and Dilworth, Paxson, Kalish & Green, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 292]

OPINION BY MR. JUSTICE JONES

The plaintiff company, a Pennsylvania corporation, is the lessee and occupant of certain property situated along the Baltimore Pike (U.S. Route 1) in Spring-field Township (a township of the first class) in Delaware County. The chief improvement on the demised premises is a large stone and frame building which sits back more than a hundred feet from Baltimore Pike. It contains a large dining room, two smaller dining rooms, an office, a bathroom, a pantry, a dishwashing kitchen and a cooking kitchen on the first or main floor, six bedrooms and two baths on the second floor, and six bedrooms and a bath on the ground floor.

Under the zoning ordinance of the township the property is located in "E Business District" in which certain specified business uses are permitted. The ordinance also contains a provision authorizing the use of a building or premises in a business district "for any of the following purposes [listed under fourteen categories] when authorized as a special exception by the Board of Adjustment...." Among the possible uses, by special exception, is a "hotel, boarding house or restaurant". The ordinance does not, however, prescribe any rules or standards in accordance with which a special exception may be made.

Upon the plaintiff's application in 1949, the Board of Adjustment of the township granted a special exception permitting the plaintiff's use of the leased property for a restaurant business which it thereafter conducted. Later in the year, the plaintiff applied to the Board of Adjustment for a special exception permitting it to use the property as a hotel or guest house in connection with the restaurant. The application was opposed by a number of protestants. In the case of some of them, according to a finding of the Board, "the sale of liquor on the premises [if used as

[ 371 Pa. Page 293]

    a hotel] was their sole objection" to the application for a change in use. After a hearing on the application, the Board refused it, largely for the reason that if the premises were used as a hotel, liquor would be sold there. The applicant appealed from the Board's order to the Court of Common Pleas pursuant to Section 3107 of The First Class Township Law of June 24, 1931, P.L. 1206, as amended, 53 PS ยง 19092-3107 Pkt. Part. The court, as authorized by the Act, took further testimony and, in due course, filed an adjudication containing findings of fact and conclusions of law and entered a decree nisi reversing the order of the Board of Adjustment and directing the Board to authorize a variance permitting the plaintiff to use the demised premises as a hotel. Upon exceptions by the Board of Adjustment and several of the protestants, the court en banc filed an opinion sustaining the action of the learned hearing judge and entered the decree nisi as a final decree. The matter is now before us on the separate appeals of the Township of Spring-field and several of the protestants.

As already appears, the applicant invoked the Board's power to grant a special exception, which was refused, while the court below, being of the opinion that the absence of prescribed conditions in the ordinance did not warrant the granting of a special exception, held that the evidence did justify the grant of a variance. The distinction between a special exception and a variance was recognized and clearly defined in Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 483, 41 A.2d 744, where Mr. Justice STERN said, "An 'exception' in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be ...


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