Appeal, No. 159, Jan. T., 1956, from decree of Court of Common Pleas of Delaware County, Dec. T., 1954, No. 789, in re: Appeal of Garbev, Inc. from Decision of Board of Adjustment of Township of Upper Darby. Decree affirmed.
Robert B. Greer, with him Butler, Beatty, Greer & Johnson, for appellant.
Bernard G. Segal, with him Guy G. deFuria, Harold B. Bornemann, deFuria, Larkin & deFuria and Schnader, Harrison, Segal & Lewis, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The owner of a 13 acre tract of land which was classified R-2 residential applied for a building permit
to erect a supermarket and adjoining incidental retail stores with parking areas thereon. Prior to January 4, 1955, much of the land in question had been zoned B business. The petition asked for a variance and other relief. The building inspector refused to grant the petition on the ground that the application was for a business purpose in a residential zone. The Board of Adjustment denied the appeal. The Court of Common Pleas took testimony, sustained the appeal and concluded that the zoning ordinance was, as to this tract of land, arbitrary, discriminatory, confiscatory and therefore unconstitutional.
The procedure followed by Garbev was in accordance with that prescribed by Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356; however, it "did not prevent the petitioner from raising or the Court from determining the constitutionality of the act or ordinance": Medinger Appeal, 377 Pa. 217, 220, 104 A.2d 118; see also Baronoff v. Zoning Board of Adjustment, 385 Pa. 110, 122 A.2d 65.
The Chancellor made the following material findings:
"The property in question is an irregular tract of ground of approximately 13 acres situate in the Township of Upper Darby.
"Appellant's land is bounded on the east for a distance of 1053 feet by the freight line of the Newtown Square Branch of the Pennsylvania Railroad Company. This railroad is at grade over Garrett Road and over appellant's land either at grade or elevated because of the slope of the ground. The railroad, which has been in existence for about 75 years, is used for two freight trains daily. At Garrett Road, at grade, there is an area of about 350 feet by 100 feet, which for many years has been used for the storage of freight and heavy materials and supplies.
"The rear line of the involved tract, which is the south boundary, is 943 feet long and this tract is adjoined on the south by other land of appellant extending to Marshall Road. This is vacant ground ... and access to it will be from Marshall Road.
"The west boundary of appellant's land is 853 feet long and consists of the rear property line of 15 dwellings which front on Clearbrook Avenue away from appellant's land. There is no street ...