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SCHWARTZ v. WAGNER. (06/26/56)

June 26, 1956

SCHWARTZ, APPELLANT,
v.
WAGNER.



Appeal, No. 83, Jan. T., 1957, from order of Court of Common Pleas of Montgomery County, Sept. T., 1955, No. 5, in case of Arthur Schwartz et al. v. Earl K. Wagner et al. and 7900 Old York Road Corporation. Order affirmed.

COUNSEL

Robert K. Greenfield, with him Thomas F. Devine, Julian W. Barnard and Folz, Bard, Kamsler, Goodis & Greenfield, for appellant.

Morris Gerber, with him Samuel H. High, Wisler, Pearlstine, Talone & Gerber, and High, Swartz, Childs & Roberts, for appellees.

Before Stern, C.j., Jones, Bell and Chidsey, JJ.

[ 385 Pa. Page 366]

OPINION PER CURIAM

The order here on appeal is affirmed on the following excerpts from the opinion of President Judge KNIGHT for the learned court below:

"On June 7, 1955, the '7900 Old York Road Corporation' through its counsel, applied for a special exception to permit it to erect an eight story apartment house which will be in excess of sixty-five feet in height, but not more than eighty-five feet in height.

"After due notice by advertisement and otherwise and after a public hearing the Board rendered the following decision: 'And now, to wit, this 27th day of August A.D. 1955, the petition of 7900 Old York Road Corporation for an exception in order to construct a multiple dwelling on its premises situate the northwest corner of Old York Road and Spring Avenue, Elkins Park, Pennsylvania, is hereby granted, subject to the condition that the building be constructed in accordance with plans approved by the Commissioners of Cheltenham Township.'

"We cite the application and quote the decision because we are met at the beginning with the question of whether we are considering the change in height from 65 to 85 feet or whether we are considering the erection of an apartment house on the tract in question.

"The application is made by virtue of Sec. 1401 of Article IV of the Cheltenham Zoning Ordinance of 1929 as amended by Ordinance 639 in 1941 and further amended by Ordinance No. 829, approved January 18, 1955.

"Sec. 1401 of the original ordinance limits the height of buildings in the Township to 65 feet, the amendment of 1955 permits an additional height of 20 feet if granted as a special exception by the Board of Adjustment. Since the application was made under the

[ 385 Pa. Page 367]

    provisions of Section 1401 as amended, it would certainly appear that the only thing the Board of Adjustment had before them ...


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