Appeal, No. 289, Jan. T., 1954, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1954, No. 7270, in case of Mabelle S. Walker v. Zoning Board of Adjustment of City of Philadelphia et al. Order affirmed.
William E. Schubert, Jr., with him Thomas M. Schubert and Schubert & Schubert, for appellant.
H. Francis DeLone, with him Thomas Thatcher, Robert M. Landis and Barnes, Dechert, Price, Myers & Rhoads, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The only question in this case is whether a certain institution operated by the plaintiff is to be deemed a "school" or a "sanitarium" within the meaning of a zoning ordinance of the City of Philadelphia.
Plaintiff, Mabelle S. Walker, is the purchaser, under an agreement of sale, of premises 6399 Drexel Road, Philadelphia. She filed an application with the Zoning Division of the Department of Licenses and Inspections for a permit to use those premises for a school for a physically handicapped children. The Zoning Division denied her application and, on appeal, the Zoning Board of Adjustment likewise refused her request. Thereupon the plaintiff took her case to the Court of Common Pleas No. 3 of the County of Philadelphia, which reversed the decision of the Zoning Board on the ground that its action was arbitrary, capricious, and without foundation in the evidence, and it remanded the record to the Board with direction to issue the permit for which application had been made. Overbrook Farms Club, which intervened in the proceedings, now appeals from that order of the court.*fn1 Since the Act of May 6, 1929, P.L. 1551, which deals with zoning ordinances of cities of the first class, does not provide for any appeal from the court below our review is merely as on certiorari and we examine the record only to see whether there is any evidence to sustain the findings and whether the proceeding is free from a violation of positive law and any flagrant abuse of discretion.*fn2
The premises in question are situated in a district designated "A" Residential by the Philadelphia Zoning Ordinance of August 10, 1933, as amended. Subsections 5 and 7 of Section 7 of the Ordinance provide that the uses permitted in such a district shall be: "(5) Schools, colleges, universities, convents and dormitories ... (7) Hospitals, sanitaria, eleemosynary and public institutions (other than correctional), provided, any such use is not prejudicial to the public health or welfare." Sebsection 21 provides: "Hospitals, sanitaria, eleemosynary and public institutions (other than correctional), shall be located at least seventy-five (75) feet from any adjoining lot or lots."
It is admitted that the building on the premises 6399 Drexel Road, which has heretofore been occupied as a residence, falls somewhat short of the 75' requirement. If, therefore, the property is to be regarded as a "sanitarium" the application was properly denied, but if for a "school" the application should have been granted since the ordinance does not provide for such a requirement in the case of schools.
Plaintiff is a graduate clinical psychologist with 30 years' specialized experience in the education of physically handicapped children. She has long conducted an institution for the education of such children at a property on City Line Avenue, which premises, however, have been sold, so that she now wishes to remove to the Drexel Road property. The school is licensed by the Private Schools Division of the ...