Appeal, No. 39, Jan. T., 1955, from decree of Court of Common Pleas of Delaware County, Sept. T., 1952, No. 1067, in case of Charles W. Michener and E. C. Bierkamp from order of the Board of Adjustment of the Township of Haverford, Delaware County, Pennsylvania. Decree affirmed.
Edward H. Bryant, Jr., with him Howard M. Lutz, Joseph T. Labrum, Jr. and Lutz, Fronefield, Warner & Bryant, for appellant, Intervenor.
Raymond E. Larson, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The decision of the court below was correct in holding that the plaintiff is not entitled to a variance, but for a reason other than that on which the decision was predicated.
Charles W. Michener, prior to his recent death, was the owner of four lots of land having a combined frontage of 215 feet on the north side of Township Line Road and a depth of 169 feet on the east side of Bewley Road, in Haverford Township, Delaware County. A dwelling house on the property was occupied by Michener and his family for more than 30 years, but he moved away in 1952, having entered into an agreement to sell the property to E. C. Bierkamp. The agreement was conditioned on the purchaser being able to obtain the right under the zoning law to build a store on one of the lots.
The premises are in a district classified as "C" Residential under the Haverford Township Zoning Ordinance
of July 29, 1925, as amended, which does not permit any business use of property in such a district. Michener, as owner, and Bierkamp, as equitable owner, applied to the Township Building Inspector for a permit to erect a one-story brick store building, 30 feet by 60 feet, on one of the lots, for the purpose of conducting therein a retail establishment for the sale of linoleum, tile, and other flooring. The Building Inspector refused the permit. The Township Board of Adjustment, on appeal, refused a variance on the ground that the applicants had not shown the existence of any hardship by reason of the zoning regulations that was different from that of the other property owners in the district.
Michener and Bierkamp appealed from the order of the Board to the Court of Common Pleas. While the proceedings were there pending Michener died and his widow, Hazel S. Michener, who succeeded to the ownership of the property as surviving tenant by the entireties, was allowed to intervene. The court at first decided that the Board should have granted a variance but subsequently, in its final decree, affirmed the Board's order and dismissed the appeal. This was because its attention had been called to the fact that each of the three deeds by which Michener acquired title to the lots contained a covenant whereby he agreed for himself, his heirs, executors, administrators and assigns, with the grantor, his heirs and assigns, never to erect upon any part of the ground certain enumerated kinds of buildings, among them a store, and not to convert any building thereon into a store. ...